International Journal of Legal English

Volume 2 Issue 2 2014 International Journal of Legal English Volume 2 Issue 2 2014

The International Journal

of

Legal English

Volume 2 Issue 2

September 2014

Chief Editor:

Prof. Li LI

China University of Political Science and Law

Beijing

China

Chief Australian Advisor

Dr. Beata Webb

Bond University

Australia

Published by the English Language Education Publishing

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International Journal of Legal English Volume 2 Issue 2 2014

© English Language Education Publishing

Brisbane

Australia

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All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior written permission of the. English Language Education Publishing [email protected]

Chief Editor: Prof Li Li

ISSN (to be assigned)

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International Journal of Legal English Volume 2 Issue 2 2014

Table of Contents

I. The Use of ‘or’ in Post-graduate Student Academic Legal Writing. Paschal Maher ……………………………………………………………………………………… 4

II. Social Semiotic Approach to Civil Judgments in the Mainland of China: Generic Structure Potential Model. Min Dong Nancy, Songdan Buo……………………... 19

III. Legislation Translation in China: A Perspective of Horizontal Equivalence. Luping Zhang……………………………………………………………………………………….. 52

IV. The Progress of Legal Semiotics in China. Hongqin Zhang………………………………….. 70

V. Chinese Translation of Long Sentences in Legal English: From a Contrastive Study Perspective. Xiaojuan Liu ………………………………………………………….. 88

VI. Narrative Study on Witnesses’ Involvement in Their Statements. Li Sun………………… 99

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The Use of ‘or’ in Post-graduate Student Academic Legal Writing

PASCHAL MAHER Language Center of the University of Zurich and ETH Zurich, 8006 Zurich, Switzerland [email protected]

BIO DATA Paschal Maher (PhD in Applied Linguistics) is an EAP instructor at the Language Centre of the University of Zurich and ETH, Zurich, Switzerland. He teaches English for law, English for medicine and runs pre-semester intensive courses for English for academic purposes. He is a member of the Centre for Applied Language Studies at the University of Limerick, Ireland and has a particular interest in corpus based analyses of ESP contexts. He can be reached at [email protected].

ABSTRACT The use of „or‟ has a prevalence is legal academic writing that does not appear to be the case in other academic disciplines. While previous studies have looked at the phenomenon of „or‟ in expert writing contexts, there still remains a degree of uncertainty about what role it plays in student legal academic writing. This is partially because a standardised use of the construction, in terms of fixed binomials, is largely eschewed by law students and instead opt to fit relations around the „or‟ node according to the context in which a proposition is set. This paper shows how „or‟ can play a key role in giving clarity to legal scenarios as well as increasing the scope of a proposition to avoid misinterpretation, or exploitation, by another party. Based on this and other corpora analyses, it is to be assumed that the practice of using „or‟ comes from its use in the construction of formal legal documents, on which students frequently rely to support propositions and explain legal frameworks. Successful use of the node implies that the students already have a solid legal understanding of an issue and the lexical resources to express the relations which „or‟ enables.

KEYWORDS Corpus analysis, student writing, binomial relations, rhetorical functions, clarity

1. Introduction According to Mellinkoff (1963: 148) „or‟ appeared as a conjunction in written English in the 13th century (as the short for „other‟, which originally meant „one of two‟ and not „either‟). In the 14th century „either‟ (which originally meant „each of two‟) also came to mean „or‟. Therefore, „or‟ could connect alternatives, equivalents or even emphasise alternatives when prefaced in the construction „either … or …‟ However, a general description may not suffice in providing a sufficient base upon which a pedagogy can be

4 built to enable students to acquire a better understanding of its use. A problem with the study of „or‟ is that the binomial relations it enables are often not of a fixed nature. Indeed, Biber et al. (1999: 1031) noted that recurrent binomial phrases with „or‟ were not common in their corpus and Gustafsson‟s 1975 analysis of a wide range of genres showed that 84% of all binomials occurred just once. Therefore, acquiring a clear picture of the use of „or‟ binomials requires the processing of a high number of variable cases in order to determine categories of functions. Having a more comprehensive understanding of the use of „or‟ is particularly relevant for the field of academic legal writing where, as the Material and Methods section will show, „or‟ ranks high among the high frequency keywords in the corpus of post-graduate academic legal writing. This phenomenon follows in the steps of Gustafsson‟s 1984 study of legislative texts, which recorded a rate of occurrence for binomials in general that was four to five times more frequent than in her corpus of newspapers, magazines, novels and popular scientific literature. Gustafsson‟s legislative texts also showed a higher rate of reoccurrence of binomial forms, with repetition at a rate of on average 2.3 times. As a first step to gain a better understanding of the context in which „or‟ typically works, the relations it can enable should be outlined. The three most common are synonymous, antonymous and hyponymous relations. 1.1 Synonymous Relations Harris (1973) defined synonymy as “the sameness of meaning of different expressions” (p.11), though both he and Murphy (2010) recognised the extreme difficulty in finding absolute synonyms, two words whose meanings are interchangeable in all contexts. Indeed, Carter and McCarthy (1988: 29) concluded that context is critical in assessing the extent of a synonymous relation. In light of the norm of imperfect alignment and being subject to the vagaries of context, the view provided by Murphy (2003) seems eminently pragmatic: she argued that that two items could be considered as synonyms so long as “their differences are slight enough that, in context, the two words‟ meanings contribute to the same context-relevant information (p.150). Therefore, ironically, synonymy‟s expression in real language appears to require an awareness of not just how and when items can be similar, but also discerning the degree of contrastive nature of them in order to ensure effective use. 1.2 Antonymous Relations Antonymy can be divided into two core divisions: gradable and non-gradable opposites. Lyons (1977: 279) considered gradable opposites to have the property of polarity (such as „big:small‟), with Carter and McCarthy (2006) recognising that gradable opposites were “the upper and lower parts of an open-ended scale” (p.442), in that there is no maximum or minimum on the scale and modification is possible (e.g. big, very big, incredibly big). Polarity, on the other hand, does not exist for ungradable opposites, the relation of male:female cannot be modified by „quite male‟, „very male‟ etc. Jeffries (2010: 19) referred to this as mutual exclusivity, Saeed (2009: 324) binary antonyms and Cruse (1986: 198) described this class of relations as complementaries. Jones (2002) did not draw any distinction arguing that, while the whole field encompasses a multitude of relationships, there is a basic commonality in that one recognises that indeed there is a sense that one expression stands in opposition to the other. However, the contrasts that

5 people choose, boy:girl, boy:man, happy:sad, happy:angry, imply that people activate what Willners and Paradis (2010: 16) referred to as a conceptual domain, in that the domain establishes a common identity for the terms. This notion of relatedness can also be seen in Lyons (1977) when he argued that most, if not all opposites “are drawn along some dimension of similarity” (p.286). Similarly, McCarthy (1988) argued that “terms in opposition will be locally determined” (p.197), which would seem to imply a shared understanding of the context if the utterance is to be successfully communicated. Therefore, just as synonymy implies an awareness of the degrees of contrast between items in a given context, for antonymy to work successfully it means all parties must fully comprehend the cline of identity on which the opposing meanings face each other. 1.3 Hyponymous Relations Lyons (1963) defined hyponymy in terms of “unilateral implication” (p.69) and used the example that „X is scarlet‟ will be understood to imply that that „X is red‟, but not conversely. Therefore, as Partington (1998: 32) observed, the truth value of a phrase is not altered if the hyponymous term is replaced by its superordinate, though the opposite vector does not hold (X may be red but it doesn‟t mean it‟s scarlet, it may be crimson). As we have already seen for antonymy and synonymy, hyponymy can also interact with the spheres of similarity and difference. For example, Jeffries (2010: 111) argued that apparent antonyms „stride:stroll‟ were in fact not so as they are both hyponyms of „walk‟ and hence closer to synonymy than antonymy. This fine line of distinction led Storjohann (2010: 83) to emphasise the closeness between a hyponymous relation. Murphy (2003: 139) on the other hand returns to the key role of context and its local language by noting that awareness of semantic closeness and semantic specificity were the issues that required the attention of the speakers in the situation of use. Context is also key in the ability to recognise the connection between seemingly disparate hyponymous members as noted by Carter and McCarthy (1988), who used the term pseudo-hyponymy to describe the disparate members of the hyponymous set for „presents‟. In effect, what Carter and McCarthy pointed out was the ability of words to be different in sense but nevertheless not be incompatible, all the members have what Lyons (1968) described as a “dimension of sameness” (p.459). Indeed, Lyons further remarked that for some semantic sets there may be no conventional superordinate at all (p. 456), yet this „dimension of sameness‟ is the glue that allows a list of words or expressions to be recognisably related to each other.

What the three relations above share is that those in communication must first share an understanding of the context in which the relations are set. Then it must be decided whether the word relations around the „or‟ node serve to illustrate a direct relation between the members (antonyms and synonyms) or whether they are meant to illustrate an umbrella concept (hyponyms). For the former, a precondition for effective use is that the choice of expressions requires an understanding of whether a clear or overlapping contrast exists. For the latter, the ability to find a common thread between the expressions is fundamental. In essence, it is the interplay of context, degree of contrast and commonality. This can be already challenging in a general English context, but as one moves into ESP fields the premise of having to be able to speak as the disciplinary community speaks means one must already be a competent user of the disciplinary lexis in order to make the appropriate combinations. Therefore „or‟ could be

6 said to represent a structure that can be applied only by disciplinary proficient users in an ESP context. 1.4 Functions facilitated by ‘or’ With regard to the effect the various relations can have when used with „or‟, Storjohann‟s (2010: 86) coordinated synonymy joined synonyms through the use of „and‟, „or‟ or „as well as‟. Her analysis indicated that these constructions signalled inclusiveness and exhaustiveness as the framework enabled the conveying of as much information as possible through the slight semantic shades between the synonyms. For antonyms, Jones (2002) noted that the „or‟ coordination contrasted with the „and‟ coordination in that it didn‟t simply account for each antonym without accounting for all in between, but that it was intended to symbolise an entire range, and this could be done with gradable or ungradable antonymous pairs. He summed up the contrast as follows: “those linked by and can be seen as „inclusive‟; those linked by or as „exhaustive‟” (p.63). Biber et al.‟s (1999) analysis of multiple registers of English found that few nouns were connected with the coordinator „or‟, but when they did, the function was to combine opposites to show that the proposition was true in all circumstances (e.g. “an area is determined by the vegetation, that is, the presence or absence of plants” – Biber et al. 1999: 1033). Jones also noted that syntactically the „or‟ construction was more likely to post-modify a noun head (e.g. “he showed no disloyalty, privately or publicly”). This also matches the findings of Gustafsson (1984), Dámová (2007) on the binomial preference for the rheme position in a sentence. Finally, Lyons (1968: 455) outlined what perhaps could be one of the key functions of hyponymy as that of enabling us to be more general, by using the superordinate, or more specific, by using the hyponym, as circumstances dictate. Unfortunately, further details on how „or‟ functioned in such a context were not provided, though Biber et al. (1999: 82) found that „or‟ was more common in academic prose where they noted the rhetorical function was that of providing further examples or terms to clarify a concept. In a legal context, Bazlik (2007) was of the opinion that „or‟ fitted better in contexts where a potential act is being described (e.g. “the Bank shall have the right to appoint or constitute one or more individuals...” – Bazlik 2007: 93), while the other main binomial coordinator „and‟ was more appropriate to describe acts already accomplished (e.g. “The Mortgagor hereby appoints and constitutes the Bank as ...” – Bazlik 2007: 93). However, an expression such as „appoint or constitute‟ can lead one to question the necessity of both terms. One needs to ask whether binomials and multinomials in legal academic English provide a necessary or superfluous reflection of the complexity which requires the attention of the law. The superfluous nature would confirm Mellinkoff‟s (1963) comment about some “worthless doubling of synonyms” (p.349) or alternatively, the necessity of such constructions will confirm Koskenniemi‟s view (1968) that the use of binomials is “for the sake of precision and not rhetorical emphasis” (p. 78). Indeed, the majority of researchers seem to agree that the role played by binomials in legal writing is a more practical one. Bhatia (1993) saw the role of binomials as enabling precision and all-inclusiveness, Bazlik (2007) was also of the opinion that primarily it was to make “the meaning more precise, unambiguous” (p.91) and Norrick (1988) concluded from his analysis that binomials “are rarely really superfluous” (p.80). If we follow Danet‟s view that the function of legal language is to create the illusion of certainty in an uncertain

7 world and that words are meant to control that environment (1980: 554), then Malkiel‟s (1959) view of binomials in general could have relevance here. He maintained that the structure helped tidy up loose ends and that elusive facts could “fall into tidy patterns, complex and partially overlapping” (p.160). All of the above indicates the function of „or‟ is to provide varying degrees of coverage of a concept and/or provide further clarity. However, how this manifests itself in an academic legal writing context requires further investigation if students in that field are to better understand how it can be used. And indeed, the need to understand its use in this discipline is clear given its ubiquity as a keyword as the Materials and Method section below will show. 2. Materials and Methods 2.1 Materials The study is based on a corpus of 933,000 words of exam graded assignments by Master of Law students studying across three universities in Ireland. A total of 30 students contributed to the corpus with 124 texts. All the texts had received a pass grade or higher and therefore could be considered to represent the required writing standards of the disciplinary community. 2.2 Methods Briefly, the process of arriving at such a list meant categorising the assignments into broad sub-disciplines and with the WordSmith (Scott 2008) software, deriving keywords by using the British Academic Written English (BAWE)1 corpus as the reference corpus. These keywords therefore represented expressions that occurred in post-graduate academic legal writing at a higher than average rate than in student academic writing in general. However, this list was further refined by selecting items that appeared across sub-disciplines, which when combined, represented over 50% of the whole study corpus. This provisional semi-technical list (items common to a majority of sub-disciplines) underwent additional tests for genre bias, author bias and, through requiring a regular use across four set periods in the academic year, task rubric bias. As a result, the final list contained items that represented a regular use in the post-graduates‟ assignments regardless of the influence of the variables just listed. This finalised semi-technical list then had two main streams of expressions, those with high keyness scores, but mostly relatively low frequency levels, and those with low keyness scores but high frequency levels. It was in the latter where „or‟ was high up on the list. As already noted in the Introduction section, this echoes an earlier study by Gustafsson (1984), who also recorded a high occurrence of binomials in legislative texts. TABLE 1 ‘Or’ position on list of highest frequency keyword items

Period Freq. Authors Period Freq. Authors Period Freq. Authors Period Freq. Authors 1 2 3 4

1 The British Academic Written English (BAWE) corpus was developed at the Universities of Warwick, Reading and Oxford Brookes under the directorship of Hilary Nesi and Sheena Gardner, Paul Thompson and Paul Wickens, with funding from the ESRC (RES-000-23-0800).

8 OF 5524 14 OF 5749 15 ON 880 14 OF 12457 14 THAT 1729 14 IN 3298 15 OR 573 14 THAT 4274 14 ON 943 14 THAT 1852 15 LAW 562 14 ON 2000 14 LAW 748 14 LAW 956 15 THAT 366 14 OR 1852 14 THE AT 697 14 OR 756 15 MAY 309 14 NOT 1801 14 OR 675 14 CRIMINAL 463 12 BY 249 13 AN 1771 14 THE To understand the rhetorical functions 2 which „or‟ enabled, the first 50 lines were analysed in the randomly sorted Period 1 and the features there were sketched. The lines were randomly sorted to ensure all authors could be present. Thereafter, every tenth line was analysed to see if the initial features identified repeated themselves or new trends emerged. For Period 2, every tenth line was again selected with this time the 50 lines from the second quarter of that randomly sorted sub-corpus. Period 3 sub-corpus supplied 50 lines from its third quarter and every tenth line outside this block. As the patterns did not vary significantly from one period to the next, it was decided to take just every tenth line from Period 4 which repeated what was previously observed. Syntactically, the most common word form used with the construction is the noun form, which was what both Gustafsson (1975) and Biber et al. (1999) found, though the present corpus also revealed a significant combined presence of non-nominal forms: TABLE 2 Distribution of word forms Word-form % share of occurrences Nominal 45% Adjective 19% Verb 19% Pronouns 5.5% Adverbs 2.5% Other 9% The „other‟ category is comprised mostly of whole clauses. 3. Results 3.1 Rhetorical function A common theme running through the syntactic analysis of the use of „or‟ was that the student writers place a lot of emphasis on articulating details for the reader rather than leaving space for interpretation. Another feature of the use of „or‟ is that it appears to be mostly used for non-experiental events. What is meant by this is that what is reported is not in relation to an individual event which has actually occurred, but instead frameworks, conditions or criteria are provided mostly to deal with what might occur, or to describe how scenarios are currently dealt with:

2 For the purposes of this paper rhetorical functions are defined as any element of analysis which the student writers include in their discourse to persuade the expert members of the discourse community that their engagement with a given topic is appropriate for the discipline, and of an acceptable standard

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(1) For land damage, contaminants must be removed such that there is no longer a significant risk to human health, having regard to the current or future uses of the land. (Period 1) (2) In this way, much emphasis is placed upon the judicial investigation and resolution of issues during the pre-trial phase, the trial serving as the final examination or hearing, rather than the focus of debate. (Period 3)

Of the 3850 corpus lines for „or‟, less than 30 refer to experiential events. Despite the fact that some texts do recount historical events, the „or‟ construction is rarely used to relate such happenings. Instead, the „or‟ construction occupies a space that enables the student writer or external source of the proposition to exercise more control over what precedes and follows „or‟. The evidence and observations above would appear to be in line with Bázlik‟s (2007: 93) view that „or‟ fitted better in contexts where a potential act is being described. With the description of non-experiential events being the main field of operation for „or‟, Table 3 below elaborates this context by showing the five main rhetorical functions being applied in the texts and their approximate percentage of use between student and external sources. External sources were comprised mainly of the formal sources of law, such as judgements, statutes, conventions etc. Academic sources were also present, though these accounted for no more than 10% of the category. When explaining the rhetorical functions it is important to understand that the rhetorical function categories are not mutually exclusive and as they are subjectively based, are thus open to interpretation. Nevertheless, the evidence provided by the sample concordance lines should demonstrate why such categories were derived.

TABLE 3 Main rhetorical functions for the ‘or’ construction

Rhetorical function % of concordance Share between lines student and external sources Student External

List of members of a semantic 50% 34% 16% set Degree of intensity 20% 18% 3% Reinforcement 10% 7% 3% Maximum scope 10% 7% 3% Temporal/staged relation 5% 2% 3% 3.1.1 List of members of a semantic set This represents the main use of the „or‟ structure with just under 50% of occurrences. Based on a random sample of 100 concordance lines, the rhetorical functions of semantic sets operate 68% of the time in the domain of student propositions, though one-third of these were made up of students explaining a law or the views of academics. The

10 remaining 32% of the occurrences belonged to the external sources, of which the formal sources of law dominated as opposed to quoting the views of academics. The semantic set is derived from the general focus of the proposition in the sentence as the following example illustrates: (3)...the victim should be kept informed of any change in circumstance of the offender, bail application, any release from prison, parole, escape or temporary release. (Period 2) The underlined words are actually a part of a longer list that deals with the state of incarceration of an accused or convicted person. The expressions that precede and follow „or‟ are not antonyms and indeed the whole list cannot be regarded as a temporal representation of the stages toward release. However, they do represent a semantic set and their articulation specifies what features are of relevance. The superordinate term could be considered to be „penal administration‟ with all the individual conditions constituting what „penal administration‟ might mean. The details provided would appear to conform to Cruse‟s (2011: 137) criteria for a taxonomy, in that they represent features unique to the superordinate. What is not clear is whether the list is exhaustive or not, though given the attention to detail one might be led to assume that the purpose is to be exhaustive rather than exemplary. Another feature is the need to „flesh out‟ superordinate terms. The example below describes elements to be considered when enacting legislation that promotes zero tolerance in the face of crime. Four sentences before the one quoted above, the writer refers to the shell noun phrase „legal safeguards‟, which without the eventual listing of the co-hyponyms, could be a rather nebulous superordinate concept:

(4) It does so in the absence of any considered debate about the actual threats posed by such individuals, the suitability of extraordinary provisions in the circumstances, or the impact on due process values in general. (Period 4) Looking at specific uses within the semantic set category, the sub-element „such as + or‟ is the structure that can serve to exemplify a shell noun: (5) The law recognises “knowledges beyond itself” and does not hesitate to invite “information and advice of an extra-legal kind” such as psychiatrist‟s reports or information on the social background of an offender. (Period 1)

This construction clearly has an illustrative purpose rather than achieving clarity and precision and is volunteered by the writer rather than he or she being obliged to specify parameters deemed necessary by a law. Therefore, it would appear that it serves to show the reader that the student is aware of what exactly a non-explicit noun superordinate can mean. The students‟ autonomous propositions account for almost 75% of these occurrences and occurred a total of 53 times in the „or‟ corpus. There is also another way in which the student writers use the „or‟ structure for illustrative purposes: (6) With written constitutions or other obligations the legislative body is limited by the courts, but only to specific fundamental principles. (Period 3) In the example above we have the construction „or + other + shell noun‟ which is another sub-element in this category and occurs 56 times in the „or‟ sub-corpus. Whereas in example (5) the trend was to name the shell noun and then illustrate it with examples

11 using the „or‟ node, this time it is the reverse with the specific example coming before the „or‟ node and the shell noun following. Bázlik (2007: 99) noted that the function of the „or + other + shell noun‟ was to cover all eventualities but perhaps more significantly, the hyponym of the superordinate represented the most typical member of the concept. This structure fits well with Rosch‟s (1975) prototype theory in that the most easily identified member of the class is named and the shell noun acts as an umbrella for all other members. This particular construction is strongly represented by the external sources, which account for 50% of occurrences, and even for student propositions 50% of them are in the context of indirectly reporting a law. Finally, a phenomenon that occurs 86 times in the corpus is the binomial „he or she‟ or „his or her‟ when referring to a legal party: (7) …makes a statement at trial which is materially inconsistent with his or her pre-trial statement. (Period 1) This construction is used for student autonomous propositions roughly 45% of the time, external sources account for about 40% and student explanations of external source propositions take up the remaining 15%. Being gender inclusive, it could be seen as a reflection of student political correctness, though given its existence in formal legal documents (as was also the case for Carvalho‟s (2007) corpus), there is also likely to be a legal underpinning. This last point is not only another demonstration of intertextuality but case law has also ruled on the issue of gender inclusiveness. The absence a woman‟s presence in areas such as being a party to a contract where the family home was being used as collateral actually had legal consequences3. 3.1.2 Degree of intensity relation The degree of intensity relation, which accounts for almost 20% of all occurrences in the „or‟ sub-corpus, is when the student writers describe states or activities that exist on a cline and can move towards or from the minimum and maximum of the condition: (8) However the definition given to harm under the regulations is “an act which actually kills or injures wildlife.” (Period 4) (9) … the application of domestic or agreement-based provisions designed to eliminate or lessen economic double taxation of dividends. (Period 2) In both of the examples above we have verbs (kills and eliminate) which represent the most extreme scenarios in their respective contexts. These are accompanied via the „or‟ construction with verbs represent a less extreme point on the same continuum. The rhetorical function of intensity is more commonly used by students to make their own propositions with roughly 75% of occurrences representing student autonomous statements and a further 15% for when they explain external propositions. 3.1.3 Reinforcement relation This relation, representing 10% of occurrences in the „or‟ sub-corpus, relies on the use of synonym-like relations to carry out its rhetorical function:

3 See Lloyds Bank Ltd. v Bundy. [1975] QB 326. A Mr Bundy defaulted on a debt with the bank. The house was the security but the contract was made just with Mr Bundy and not his wife. The court however ruled that Mrs Bundy also had claim to the matrimonial home and the bank had no right to gain possession of the whole property as she had legitimate claim to a portion of it. It meant that in future the banks required that all loan contracts using the family home as collateral were to be signed by both spouses.

12 (10) …technological means of enforcement such as the introduction of filters to limit access to harmful or undesirable material (eg child pornography) (Period 2) The reinforcement relation returns us to the question of whether the expressions above are used “for the sake of precision and not rhetorical emphasis” (Koskenniemi 1968: 78). At first sight, there appears to be little added through using two terms to refer to one idea and indeed the meaning of the proposition would not seem to be interfered with by removing the second synonym. However, in some instances the student writer appears to be using the structure to show that he or she is aware of the number of ways in which the discourse community refers to a concept or entity: (11) ...the amount and type of impact that is associated with [the] permit” equates directly to the ideal of like-for-like or „targeted compensation‟ in the EU. (Period 4) (12) ...this paper initially mentions the objectives of IHL, which is also known as the Law of Armed Conflict or the Law in War (ius in bello)... (Period 1) Looking beyond such instances, expressions used by students such as frivolous or vexatious proceedings or harmful or undesirable material might be seen as non-exact synonyms but nevertheless contain sufficient overlap to mark their interchangeability. However, it could be argued that the approximation of the overlap is not key but that there appears to be the intention to achieve a greater degree of clarity through the use of this binomial structure. As Murphy (2010: 110) observed, it is indeed often difficult to find an exact replicate term but the overall effect would seem to be that of reinforcing an idea or term through the „or‟ construction and in the process mark it out as important for the reader. While the effect may not be exhaustive when one considers how antonyms are used, it is nevertheless difficult to insert further subtle differences between the two binomial members already listed. Hence, it could be argued that there is an exhaustive effect at a local level on the scale of near synonyms and this would certainly strengthen this type of binomial‟s claim to enable precision. It is a practice which appears to be used in both camps, approximately 66% of occurrences were used by students to make autonomous propositions or explain an external source‟s proposition and 34% of uses were in the context of direct reporting of external sources, mostly detailing some aspect of a law, or to a lesser extent the views of an academic. 3.1.4 Maximum scope Perhaps the easiest rhetorical function to identify is where the „or‟ node accommodates antonyms, antonym-like expressions or where the meaning is intended to cover both extremes of a continuum. This rhetorical function accounts for a little over 10% of all uses of „or‟ in the study corpus. There appears to be two main approaches taken in achieving this function. The first invokes the concept of Lyons‟ (1995: 128) complementaries (polar opposites): (13) …what issues should be considered relating to intent, is the action voluntary or involuntary, should we use narrow or broad time frames of the act… (Period 2) In a little over 70% of such cases this was the construction used by students when making their own propositions or explaining an external source. The second is to precede the use of „or‟ with „whether‟:

13 (14) …a person other than the accused may give evidence, whether from within or outside the State, through a live television link. (Period 4) The effect of this structure can be as with the first approach, to concentrate on two opposite ends of a continuum through the articulation of both antonyms. External sources and instances when students indirectly reported what external sources said accounted for approximately 60% of all occurrences. The dominant trend with „whether‟ is of enabling a widening of scope to the maximum. Indeed this trend echoes Jones‟ (2002: 74) analysis that „whether X or Y‟ was one of the significant markers of antonymy in his corpus. Another feature is the use of „otherwise‟: (15) In this section “statement” includes any representation of fact, whether in words or otherwise. (Period 4) The act of exemplifying again underlines the practice of articulating for the reader what the interpretation should be, and „otherwise‟ is particularly useful if listing both antonyms (or hyponyms) would be insufficient to cover all variants than could occur beyond the named one. It could also be argued that „otherwise‟ is a suitable alternative if a clear polar opposite doesn‟t exist (such is the case for „words‟) or the effect of explicitly naming a binary opposite may not have the desired exhaustive effect (i.e. “whether testimony in court or otherwise” is less clumsy than „whether testimony in court or not testimony in court‟ and the latter may be also open to misinterpretation). Approximately 65% of the occurrences of „or otherwise‟ were used for the direct and indirect reporting of external sources. While „or otherwise‟ allows for the unspecified expansion of options to be considered, the form „or not‟ is closely linked to the named member of the binomial: (16) Whatever the reason, and whether it is fair or not the bottom line is that the laws allows [sic] it. (Period 2) „Or not‟ occurred a total of 104 times in the „or‟ sub-corpus, which makes it the highest occurring construction after „or the‟, „or a‟ and „or to‟. It was also a structure favoured by the students when making autonomous propositions, they accounted for 75% of occurrences with this function. This time, one proposition is explicitly named and its direct opposite elides through the use of „not‟. This has the effect of placing the focus firmly in the binary nature of the relation between the two binomial members. Jones (2002) believed that this generated “a very strong sense of exhaustiveness” (p.73), though in contrast to „or otherwise‟, the exhaustiveness is clearly limited in scope. A sub-class of „or not‟ involved the use of „whether‟, which was present 71 times when checking among the five words preceding the „or not‟ node, though in 51 cases it bundled directly with „or not‟: (17) …once by the police when they decide whether or not to institute proceedings, and again by the CPS when they consider whether or not to continue with the case. (Period 2) „Whether or not‟ acts as a signal for two options of which one will be explicitly signalled in the following clause. A common function attached to „whether or not‟ bundle is that of making a decision about engaging in further action or not. Again, this was a structure favoured by students when making autonomous propositions as they accounted for roughly 65% of occurrences. A final point of interest in the construction of maximum scope is that in many cases the antonyms, while not completely canonical pairings (Jones et al. 2012: 2),

14 nevertheless could be seen as quasi-canonical, given the reliance on „or otherwise‟ or „or not‟ to contrast with the properties assumed by the other binomial member. 3.1.5 Temporal/Staged relation This is a minor rhetorical function representing approximately 5% of occurrences across the four periods. It can be constructed to include present and future actions: (18) …defines a member as a person whose occupational activities entitle or will entitle him/her to retirement benefits (Period 3) Or present and past actions: (19) …disposed of, waste, in a manner that is causing, or has caused, environmental pollution (Period 1) The effect is to widen the range of criteria which fall under some remit of the law and indeed this focus on the parameters of the law is reflected in the fact that the construction is embedded most (90%) of the time in contexts where the student quotes what the law is or describes it in his or her own words. While the sample lines above emphasise the temporal nature, there are also examples that imply a time aspect but perhaps are better described as „staged‟: (20) Lawyer must obtain the informed consent of client (current / former /or prospective) before accepting or continuing representation or pursuing a course of conduct. (Period 3) The writers here seek to include cases where an activity has yet to begin or is already in process. Due to the reliance on verbs in this binomial it is already going to have a limited scope given that verbs account for just 19% of all binomial constructions. Cruse (1986: 193) had devised similar scales for degree terms of a temporal nature, though he did not provide any examples with verbs. 4. Discussion With a few exceptions, such as „he or she‟, the students do not use „or‟ to cater for fixed binomials, but instead adapt it to the circumstances that they are describing. What appeared in the study corpus here was the prevalence of relations constructed around abstract concepts that don‟t lend themselves to regular repetition, but instead appear to be constructed on an ad hoc basis to suit the context being discussed. The connections most often provided illustration through the use of sematic set members and then varying levels of contrast, which in turn could extend the scope at a local level or indeed to cover the full horizon of possibilities. Nevertheless, understanding context is key, thus confirming the views of Murphy (2003), Carter and McCarthy (1988) and McCarthy (1988). This again all points to how the „or‟ construction plays an important illustrative role to help the reader to comprehend a context which may otherwise remain at an impossibly vague level and hence frustrate what Danet (1985) saw as law‟s desire for certainty in an uncertain world. The articulation of key points of reference is enabled through the „or‟ node and this is the core function of the „or‟ structure in post-graduate academic legal writing. Given its mostly ad-hoc nature, it means „or‟ needs to be integrated with vocabulary use if students are to effectively apply the structure. Inculcation into the discipline‟s discourse practices means first understanding the need to express the legal parameters in such a way, then having the language to clearly set the stakes in the ground. The word „or‟ is innocuous enough, but the activity surrounding it

15 can require a solid understanding of the content under analysis and an extensive lexical base to describe this content. Another feature of the use of „or‟ in post-graduate academic legal writing is that it is used for non-experiential purposes, thus reflecting the abstract nature of the legal framework being applied to real world scenarios – „or‟ enables the setting of clear parameters for the scope of a proposition. The binomials based on „or‟ carry the functions of illustration and, when necessary, also exhaustion. Indeed, there was plenty of evidence to support Jones‟s (2002) view that coordinated binomials play an exhaustive role, though again this needs to be qualified in that this was evidenced not just by antonyms, as advocated by Jones, but also through the use of near synonym and hyponym relations. Perhaps the desire for clarity and the objective of excluding loopholes come from the premise on which formal legal documents are written: that these documents will be referred to in an instance of conflict and hence a text will often be scrutinised by a hostile interpreter (Crystal and Davy 1969: 212). If so, then legal drafters engaging „or‟ to help clarity is an unsurprising development. Consequently, given the degree to which the student writers relied on the sources of law, that the practice extends to their own texts illustrates the level of influence these formal sources of law play in legal analysis. The meaning of lists, in which „or‟ is frequently found, has also been the subject of numerous legal principles of interpretation. For example, the principle of noscitur a sociis (applied when the meaning of one word is unclear, so the other accompanying words in the list are referred to in order to clarify the intention of the drafter) played a key role in the case Pengelly v. Bell Punch Co. Ltd [1964] 1 WLR 1055, and eiusdem generis (if a general word is used after two or more specific words, then it can only apply to things similar to the specific words) helped decide the case Powell v. Kempton Park Racecourse Co. [1899] AC 143. Given the high profile that such word combinations have had in the courts of law, it would seem eminently appropriate that students of law adopt the practice as preparation for their eventual entry into the professional field. 5. Conclusion Primarily, the corpus shows that the „or‟ node serves to identify key elements in a proposition and this can be done by explicitly naming the elements preceding and following „or‟. It plays multiple roles as can be seen just by taking the „members of a semantic set‟ category. Here, it serves as an exemplary role (in conjunction with the use of „such as‟ and using explicit rather than general references either side of the „or‟ node), a gender inclusive role („he or she‟), an expansion of scope role („or other‟) and as an embedded construction in multinomials, which tend to be exhaustive in terms of function. This desire for clarity could be linked to Common Law‟s roots set in judicial precedent and the courts‟ traditional dislike of vagueness, which could invite them to infringe upon the functions of the executive or parliament, and hence undermine the principle of the separation of powers (Wilson et al. 2011: 10). To sum up, the rhetorical functions require difference across the „or‟ node and there is the desire that both elements do not merely replicate each other – differentiation, with the effect of providing illustration or determining scope, is what is being emphasised when writing in a student academic legal context. ACKNOWLEDGEMENTS

16 Thank you to Dr Fiona Farr and Prof Michael McCarthy for their input on the research of this topic.

REFERENCES

BÁZLIK, MIROSLAV (2007): Miroslav (2007): Art for art‟s sake? Or peculiarities of coordination in legal English. Linguistica Pragensia. 17(2):91-101. BHATIA, Vijay(1993): Analysing Genre: Language Use in Professional Settings. London: Longman. BIBER, Douglas, JOHANSSON, STIG, LEECH GEOFFREY, et al. (1999): The Longman Grammar of Spoken and Written English. London: Longman. CARTER, Ronald AND MCCARTHY, Michael (1988): Lexis and structure. In: R.A. CARTER and M.J. MCCARTHY, eds. Vocabulary and Language Teaching. London: Longman, 18-38. CARVALHO, Luciana (2007): Translating contracts and agreements: a corpus linguistics perspective. In: K. KREDENS and S. GOZDZ-ROSZKOWSKI, eds. Language and the Law: International Outlooks. Frankfurt am Main: Peter Lang, 109-121. CRUSE, Alan (1986): Lexical Semantics. Cambridge: Cambridge University Press. CRUSE, Alan (2011): Meaning in Language: An Introduction to Semantics and Pragmatics. Oxford: Oxford University Press. CRYSTAL, David AND DAVY, Derek (1969): Investigating English Style. Harlow: Longman. DÁMOVÁ, Petra (2007): The Language of Law - A Stylistic Analysis with a Focus on Lexical (Binomial) Expressions. Unpublished Master‟s thesis: Masaryk University, Czech Republic. DANET, Brenda (1985): Legal discourse. In: T.A. VAN DIJK, ed. Handbook of Discourse Analysis, Vol 1. London: Academic Press, 273-289. GUSTAFSSON, Marita (1975): Binomial Expression in Present-Day English: A Syntactic and. Semantic Study. Turku: Turun Yliopisto. GUSTAFSSON, Marita (1984): The syntactic features of binomial expressions in legal English. Text - Interdisciplinary Journal for the Study of Discourse. Vol 4(1-3):71-106. HARRIS, Roy (1973): Synonymy and Linguistic Analysis. Oxford: Blackwell. JEFFRIES, Lesley (2010): Opposition in Discourse: The Construction of Oppositional Meaning. London: Continuum. JONES, Steven (2002): Antonymy: A Corpus-based Perspective. London: Routledge. JONES, Steven, MURPHY, Lynne, PARADIS, Carita and WILLNERS, Caroline (2012): Antonyms in English: Construals, Constructions, and Canonicity. Studies in English Language, Cambridge: Cambridge University Press. KOSKENNIEMI, Inna (1968): Repetitive word-pairs in Old and Early Middle English prose. Turku: Turun Yliopisto. LYONS, John (1963): Structural Semantics: An Analysis of Part of the Vocabulary of Plato. Oxford: Blackwell. LYONS, John (1968): Introduction to Theoretical Linguistics. Cambridge: Cambridge University Press. LYONS, John (1977): Semantics Volume 1. Cambridge: Cambridge University Press. LYONS, John (1995): Linguistic semantics: an introduction. Cambridge: Cambridge University Press. MALKIEL, Yakov (1959): Studies in irreversible binomials. Lingua. 8:113-160. MCCARTHY, Michael (1988): Some vocabulary patterns in conversation. In: R. CARTER and M. MCCARTHY, eds. Vocabulary and Language Teaching. London: Longman, 181-200. MURPHY, Lynne (2003): Semantic Relations and the Lexicon. Cambridge: Cambridge University Press. MURPHY, Lynne (2010): Lexical Meaning. Cambridge: Cambridge University Press. MELLINKOFF, David (1963): The Language of the Law. Boston: Little, Brown and Company. NORRICK, Neal (1988): Binomial meaning in texts. Journal of English Linguistics. 21(1): 72-87. PARTINGTON, Alan (1998): Patterns and Meanings: Using Corpora for English Language Research and Teaching. Amsterdam: John Benjamins. ROSCH, Eleanor (1975): Cognitive representation of semantic categories. Journal of Experimental Psychology. 104:192-233. SAEED, John (2009): Semantics. Oxford: Wiley-Blackwell. SCOTT, Mike (2008): WordSmith Tools version 5. Liverpool: Lexical Analysis Software.

17 STORJOHANN, Petra (2010): Synonyms in corpus texts: conceptualisation and construction. In: P. STORJOHANN, ed. Lexical Semantic Relations: Theoretical and Practical Perspectives. Amsterdam: John Benjamins, 69-94. WILLNERS, Caroline AND PARADIS, Carita (2010): Swedish antonyms - a multimethod approach to goodness of antonymy. In: P. STORJOHANN ed. Semantic relations: Theoretical and practical perspectives. Amsterdam: John Benjamins, 15–55. WILSON, Steve, MITCHELL, Rebecca, STOREY, TONY and WORTELY, Natalie (2011): English Legal System Directions 2nd ed. Oxford: Oxford University Press.

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Social Semiotic Approach to Civil Judgments in the Mainland of China: Generic Structure Potential Model

1 2 MIN DONG NANCY, SONGDAN GUO

1Beihang University, Beijing, China 2 The Hong Kong Polytechnic University, Hong Kong, China

BIODATA Min Dong (PhD in Foreign Linguistics and Applied Linguistics) is Associate Professor in the School of Foreign Languages at Beihang University, Beijing, China. Her doctoral dissertation is entitled Praxis-oriented Social Semiotic Perspective on Genre: A New Probing into Current First-instance Civil Case Judgments in China. Her recent publications include ―Textual patterning of judicial reasoning based on praxis-oriented social semiotic model of genre‖ (2011); ―Judicial reasoning from the perspective of thematic progression‖ (2010); ―Pragmatic presupposition in leading questions in courtroom discourse‖ (2008). Her interests include language and law, discourse analysis, systemic functional linguistics and corpus linguistics. She can be reached at [email protected].

Nancy, Songdan GUO is a PhD candidate at Department of English, the Hong Kong Polytechnic University, Hong Kong. Her doctoral dissertation is entitled The Ontogenesis of Multiliteracy Scaffolding in Textbooks: Multimodal Analysis of English Language Teaching Textbooks of Different Grades. Her recent publications include ―Ontogenetic analysis of college English textbooks in China: A systemic-functional perspective (2014)‖. Her interests include language and education, discourse analysis, systemic functional linguistics and multi-semiotics. She can be reached at [email protected].

ABSTRACT With the reform of civil judgments in the Mainland of China, it has been increasingly established that the legal genre shall perform twofold functions—declaration and justification of judicial decision. The present study attempts to make a social semiotic analysis of current civil judgments in the Mainland of China using Hasan‘s model of Generic Structure Potential (GSP) on the discourse semantic level in association with contextual configuration. Based on a corpus-based description of activity-oriented GSP of this genre, a qualitative analysis of a selected first instance civil judgment is performed by describing and interpreting the analytical results of ideational, interpersonal and textual discourse semantics of the generic structural element of arguing the minor premise of judicial reasoning. With the construal of contextual configuration comprising Field, Tenor

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and Mode, it is found that civil judgments in the Mainland of China are progressing into an argumentative genre in three aspects: 1) finding legalized facts and interpreting and applying legal rules based on adjudicating evidences adduced and reciprocally questioned by plaintiff and defendants, 2) enacting heteroglossic relations of opposition and complementarity between judges and litigants, and 3) reasoning the substantive and procedural legitimacy of the decision by means of sophisticated subsumption.

KEYWORDS social semiotic, Generic Structure Potential, Contextual Configuration, justificatory function

1. Introduction

Chinese law belongs to the Civil Law system. Civil judgments in China are written opinions made by court on the basis of verifying legally significant facts and applying relevant provisions stipulated in statutory law during civil proceedings for the purpose of settling disputes over civil rights and obligations between the two litigant parties. At the National Conference for Presidents of High Courts held on 2 December 1998, the Chief Justice Yang Xiao commented It is necessary to step up the reforms on the adjudicatory documents. The adjudicatory documents nowadays are all the same in various cases, lack of proof authentication and reasoning, without the formation process of reaching a decision and lack of persuasiveness… It has since been increasingly established that it is far from adequate to make correct decisions in civil judgments. Rather, it is required that the decision be just, reasonable and comprehensible. What it says and how it says assume as much importance as the final decision through the optimization of the organization of the macro-structure of civil judgments, including obligatory elements and formulaic expressions, procedural lexis, syntactic constructions and rhetorical devices which connect these obligatory elements into a coherent whole (Li 2004; Pan 2003; Qi 2001; Wu 2004; Zhou 2003; Wang 1999; Zhang, Z. 1998, 2003; Fu 2000; Zheng 2004; Zuo 2002). In this sense, the civil judgment is stipulated to perform twofold functions—declaration and justification of judicial decision (Maley 1994), emphasizing the activity of judicial reasoning in finding legalized facts and applying legal rules that the court is engaged in, highlighting the status of both parties to civil action as subjects of civil proceedings and their reciprocal verbal interaction in competing for valid evidence and issue of the case, and focusing on textual progression and patterning of the civil judgment as an expository type of text. In linguistic terms, this is in compatibility with the ideational, interpersonal and textual metafunctions proposed in the social semiotic model of language by Systemic Functional Linguistics (SFL). According to the social semiotic view of language (Halliday 1978), SFL not only provides a semantically-oriented functional framework of linguistic structures (Halliday 1994; Halliday and Matthiessen 2004), but associates the contextual dimensions of situation and culture to the semantic and grammatical organization of language itself with notions of register and genre (Halliday & Hasan 1985/1989; Martin 1992). This paper

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attempts to demonstrate the justificatory function and argumentative genre of current civil judgments in the Mainland of China using Hasan‘s model of Generic Structure Potential (GSP) on the multi-functional discourse semantic level in association with contextual configuration of Field, Tenor and Mode. In what follows, Section 2 reviews previous studies on courtroom judgments within SFL social semiotic framework. Sections 3 expounds on Hasan‘s model of Generic Structure Potential in comparison with other models. Subsequently, the research methodology adopted in the present study is elaborated in Section 4. And then Section 5 formulates an activity-based generic structure potential of civil judgments in the Mainland of China, describes ideational, interpersonal and textual discourse semantics of the generic structure element of arguing the minor premise of judicial reasoning of a selected first instance civil judgment, and then discusses contextual configuration of this genre in terms of the activity of judicial reasoning (Field), the enactment of heteroglossic relations of opposition and complementarity between the court and litigant parties (Tenor), and the construal of sophisticated subsumption patterning (Mode). Finally, in Conclusion, we summarize major findings of the present study and make suggestions for further study.

2. Social semiotic studies of courtroom judgments within SFL framework

By viewing language as a social semiotic, SFL characteristically studies language in context. In SFL terms, a socio-semiotic conception of the relationship between language and law holds that language constructs the law in the sense of serving as process and product in relation to the legal code and different spoken or written legal processes for the purpose of performing the two primary functions of law—the ordering of human relations and the restoration of social order (Danet 1985). Indeed, there has been a wide range of literature concerned with SFL social semiotic approach to the study of courtroom judgments, which can be classified as follows.

2.1. Genre analysis

Harris (1988) formulates generic structure of courtroom discourse by substituting obligatory element in Hasan‘s GSP model for transaction, the semantic unit of structure proposed in Sinclair and Coulthard‘s (1975) description of interactive discourse structure, and sequencing these transactions in a fixed order. Maley (1994) gives a description of generic structure potential of judicial judgments in common law countries consisting of the obligatory elements in a fixed order of Facts, Issues, Reasoning, Conclusion and Order or Finding and their differential distribution of modalizations and modulations, and makes a typology of courtroom discourse based on context of situation according to the actual sequence of legal activity from originating points of legal process through pre-trial process, trial process to recording of judgment in case report and law making. Gibbons (2003: 129-161) provides a more delicate classification of legal discourse in terms of ―macro-genre stage‖ , ―nesting genre‖ , ―primary reality within legal framework‖

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and ―secondary external reality‖, associated with the constituted (dynamic) or constitutive (codified) role of language, sequence of legal activity, participants and mode. Badger (2003) indicates how the lexico-grammar and generic structure of newspaper law reports are linked to the major purpose of the identification of ratio decidendi: in terms of generic structure, the ratio decidendi tends to appear in two places in the law report—the headnote, or summary and the decision section; in terms of lexico-grammar, a search for the ratio of a particular case and the principles of law in general might be guided by a range of co-occurring lexical and grammatical signals of the level of generality. Cheng & Sin (2007) performs a contrastive analysis of Chinese and American courtroom judgments by formulating move-step generic structure composed of rhetorical segments and explaining their similarities and differences in SFL functional terms of informative (Head, Introduction and Context/Facts), expressive and personal binding (Analysis of Ratio Decidendi), performative/ regulatory (Decision) and evocative/ expressive/personal persuasive (Judge‘s Postscript and Orbiter Dictum) and goes further to a historically cultural analysis to find out the underlying rationales for the differences in relation to a mutually complemented two-tier system of law comprising Li (traditional customs, more and norms) and Fa (laws) posited in Chinese legal thought. Cheng (2010) proves the characteristics of temporality and spatiality of the semiotic nature of a genre by focusing on the study of variations of a given genre within a jurisdiction (culture) and across jurisdictions (cultures). The major findings can be described as 1) the appellate judgments in Hong Kong and Mainland share the same type of dominant generic structure, in contrast with Taiwan, which foregrounds the declaratory function of judgments by positioning the stage Decision before Fact and Reasoning; 2) in terms of generic structure potential, Heading, Orientation, Reasoning, Decision, Ending are labeled as obligatory in all the three jurisdictions, Fact is obligatory only in Mainland China‘s appellate judgments. Appendix is optional in all the three jurisdictions; 3) at the level of GSP, Hong Kong‘s appellate court judgments are more complicated in contrast with its counterparts in Taiwan and Mainland with more optional elements, more flexible sequence of Decision and recursiveness of some stages; 4) in relation to the inter-semiotic constraints of law and society on judgments, the rigid and formatted style of appellate judgments in Taiwan and Mainland is constrained by the combination of the statutes and model judgments as well as the jurisprudence in civil law system, whereas the diversity characteristic of appellate judgments in Hong Kong is closely related to the common law tradition in U.K. Han (2011) conducted a discursive study of Chinese civil judgments to examine aspects of the ongoing Chinese judicial reform and its influence on Chinese civil litigation practices. It is found that the judicial reform influences the discursive construction of Chinese civil judgments in two most notable ways: 1) Chinese judges add more personal and case-specific writing variations to the traditionally impersonal and over-standardized civil judgments; and 2) The reformed construction of judgments significantly enhances the transparency of Chinese litigation practices by disclosing the legal reasoning process or to give a holistic picture of the litigation process based on a carefully constructed recontextualization of the non-negotiable tension between parties‘ arguments.

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2.2. Interpersonal analysis

In relation to the analysis of interpersonal metafunction of the genre of court judgments, previous studies predominantly focused on description of the uneven distribution of Subject and Finite element in mood structure and epistemic modality (modalization) and deontic modality (modulation) resources in each obligatory element of the generic structure (Iedema 1995; Xie 2001; Du 2003; Li 2005, 2008; Cheng & Sin 2008). It is found that: 1) statements realized by declarative mood frequently occur with elements of cause of action, fact adjudication and judicial reasoning, whereas commands realized by imperative mood frequently occur with judicial decision; 2) modality meanings of probability and usually are of low frequency due to their association with the factual judgment, but in cases of possibility and permission in fact adjudication and judicial reasoning when judges are applying the law, can and may are preferred, indicating the mixture of certainty and uncertainty in judicial language; 3) deontic modality or modulation related to rights, obligations and liabilities are of high frequency in elements of judicial reasoning and decision making when judges are declaring the law. Meanings of necessity and coerciveness are realized by high-value modal verbs including must, should, shall, be required to, ying, yingdang, bixu, bude, ke (realizing permissiveness); 4) polarity adjuncts frequently occur to act as intensifiers, such as buneng, wufa, bu, buyu, wu, wei; 5) the unique subject realized by benyuan and the modality metaphors such as benyuan renwei, benyuan yuyi queren, benyuan yuyi zhichi, all realize latent dialogic interaction between judges and litigants and the court‘s commitment to the epistemic certainty of their assertions in fact adjudication and judicial reasoning, and the intersubjective positioning as to the resolution of a particular civil dispute and the mandatory enforcement of law related to rights, obligations and liabilities; 6) from the perspective of institutional ideology of the judicial discourse, a court judgment is more than a judicial text in itself, rather it is a mode of action, a mode of applying and interpreting law and a multi-participant dialogue between judges who have a final say in the formation of a court judgment and litigants, and between the two litigant parties who have the right to present claims and arguments, adduce evidences and reciprocally question the other party‘s evidences. Dialogue is of cardinal importance to maintaining the multi-layered interpersonal relationship involved, facilitating judgment drafting as a collaborative problem solving, and enforcing law application as legal continuum.

2.3. Experiential and textual analysis

There are also several studies concerned with analysis of experiential and textual metafunction of the genre of judicial judgments (Kurzon 1984; Vargas 1984; Xie 2001; Chen 2005), based on which it can be concluded that

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1) cognitive mental processes and verbal processes are of high frequency, explicating the regulatory and justificatory functions of this legal genre; 2) the frequent use of nominalization and modality metaphor highlights the impersonality and objectiveness of this legal genre; 3) the judicial judgments are organized as an argumentative text type, characterized with a hierarchical semantic structure in terms of implication, entailment and opposition relations between Themes and hyper-Themes in elements of fact adjudication and judicial reasoning. The review shows that genre analysis accounts for a predominantly large proportion of SFL study on courtroom judgments, focusing on the formulation of generic structure comprising obligatory elements, optional elements, possible sequences and frequencies of occurrence, and the distribution of interpersonal resources in obligatory generic elements. Thus there remain two research gaps: 1) in what patterns are experiential resources of transitivity processes and textual resources of Theme-Rheme structures distributed in obligatory elements of generic structure of judicial judgments? 2) in what way is the unity of generic structure organically interwoven with texture in the generation of the semantic whole of text? In other words, in SFL terms, how does the functional semantic configuration of the generic structure operate under the interaction between experiential, interpersonal and textual functional semantics and lexical cohesion at the level of discourse semantics?

3. Generic structure potential

It is widely acknowledged Hasan (1985/ 1989) laid a theoretical foundation for an SFL conception of genre with her early work on the notion of Generic Structure Potential (GSP) to generalize the range of staging possibilities associated with a particular genre. It can be maintained that Hasan offers the first conceptual model for classifying texts in functional terms (Lewin, Fine & Young 2001: 15). Her notion of GSP specifies a contextual configuration motivated structure potential comprising a sequence of obligatory elements (structure defining) and optional elements with the possibility of their iteration and varying sequence (structure variation).

From a social semiotic perspective, the comparison of Hasan‘s GSP model with those theorized by other scholars is illustrated in the following table (Dong 2010: 19).

TABLE 1 Comparison of Hasan’s GSP model with other genre models

Contextual Elements Generic Structure Linguistic Forms Components

Genre

Models

Hasan‘s GSP Activity-centered FTM Generic structure potential No characterization as genre-specific 6

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(1985/1989) Contextual Configuration sub-semantic potential

Martin‘s genre Social goal in context of Schematic structure as Discourse semantics as a staged culture genre-specific sub-cultural interwoven by goal-oriented meaning potential lexico-grammatical patterns social process and cohesive texture (1992)

ESP‘s genre as Discourse-community- Move-step move structure Lexical and grammatical a set of specific communicative characterization of each move communicative purpose and step events with common communicative purposes (Swales 1990; Bhatia 1993)

New Rhetoric‘s Diachronic No characterization No characterization genre as discourse-community-sp typified social ecific ideology, social action value and social structure (Berkenkotter & Huckin 1995)

Bakhtin‘s Social-community- Global structure Lexical, phrasal and speech genre specific social purpose grammatical characterization theory (1986) and heteroglossia of generic global structure

In line with Halliday‘s (1978) socio-semiotic view of language, Hasan (1985/89: 56) categorized genre as a concept capturing the dialectical relationship of prediction and derivation between features of context and structure of texts of a particular type. It is the total set of contextual features, namely, all the selected values of the three variables of Field, Tenor and Mode as one configuration called contextual configuration (CC), that permit statements about text structure; and conversely, the on-going structure of the text gives rise to the inference of the nature of the contextual configuration. It follows that genres can vary in delicacy in the same way as contexts can, which means that texts belonging to the same genre can vary in their structure except the obligatory elements and their fixed sequence.

Hasan (1995: 245, 269; 1999: 313; 2004: 23) explicitly positioned generic structure potential and actual text structure, along with texture woven by ideational, interpersonal and textual semantic patterns, as one of the two attributes of diatypic variety of register. And it is worth mentioning that Hasan (1996) asserts that Field emerges as the most relevant situational variable where the notion of genre is concerned.

By contrast, Thibault (1990: 109-111) postulated GSP as a structural notion, operating on the textual metafunctional dimension. Furthermore, he held that GSP cannot be categorized as an empty text structure, but rather ideational, interactional, evaluative and textual meanings realized in textual productions are all simultaneously configured and co-patterned in various ways in the global organization of texts—GSP. Eggins (2004: 54) also pointed out the status of genre as belonging to the textual metafunction, ―Genre is such 7

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a kind of contextual coherence involved in the construction of texture weaved by patterns of cohesion tying the elements of the text together.‖ This means that each obligatory or optional element in the generic structure potential constitutes a multi-functional semantic configuration on the discourse semantic level (Martin 1992).

To put it in detailed terms, based on the description of generic structure potential, each generic element is a functional semantic configuration of experiential, interpersonal and textual semantic chains, which are respectively construed by cohesive relations between lexical items filling transitivity, mood and Theme-Rheme structural elements, such as repetition, synonymy, hyponymy, antonymy, meronymy (Halliday & Hasan 1976; Eggins 2004; Halliday & Matthiessen 2004), and subsequently, the calibration of values of FTM in the contextual configuration is derived, interpreting analytical results of unity of text structure and unity of texture in legal institutional ideological terms.

4. Research methodology

Achievements in the reform of composition of current civil judgments in China find best expression in Reform of Civil Judgments in China and Review on Selected Data compiled by Zhou (2003) and Selected Cases of Intellectual Property Rights Disputes: Judgments and Comments (Qi, 2001) . The corpus built in the present study is composed of all of the 32 well-formed first instance civil judgments in Mainland China from Zhou (2003) and 20 well-formed first instance intellectual property rights judgments from Qi (2001). The average size of the chosen documents stands between 3000 and 5000 characters. Based on the corpus data, the generic structure potential of first instance civil judgments in Mainland China is formulated according to Hasan‘s GSP model. Subsequently, a qualitative analysis of a selected first instance civil judgment randomly extracted from Qi (2001) is made by describing transitivity, mood and Theme-Rheme structure of each clause, and ideational, interpersonal and textual semantic chains threaded by cohesive relations between lexical items filling transitivity, mood and Theme-Rheme structural elements and related to the dispute of rights and obligations in the civil case in the generic structure element of arguing the minor premise of judicial reasoning. And then we discuss the contextual configuration of this genre in relation to the court‘s activity of judicial reasoning based on the litigants‘ supporting facts and legal views, its institutional dialogue with the litigants‘ positions and its sophisticated subsumption patterning in judicial argumentation.

5. Justification of the judicial decision in current civil judgments in the Mainland of China

With the reform of civil judgments in the Mainland of China, it has been increasingly established that this legal genre shall perform twofold functions—declaration and justification of judicial decision (Fu 2000). According to the comments in Literature Review, the justifying function of courtroom judgments is characteristically realized by generic structure potential and ideational, interpersonal and textual discourse semantics of the generic element of arguing for the reason signaled by benyuan renwei. This section 8

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formulates an activity-based generic structure potential of civil judgments in the Mainland of China, describes ideational, interpersonal and textual discourse semantics of the generic structure element of arguing the minor premise of judicial reasoning in terms of finding legally significant facts at issue of a selected first instance civil judgment and then discusses contextual configuration derived in terms of the activity of judicial reasoning (Field), the enactment of heteroglossic relations of opposition and complementarity between the court and litigant parties (Tenor), and the construal of sophisticated subsumption patterning (Mode).

5.1. Generic structure potential of first instance civil judgments in the Mainland of China

By making a quantitative analysis of the corpus of current well-formed first instance civil judgments in the Mainland of China built in the present study, the activity-oriented generic structure potential of this legal genre is described according to Hasan‘s GSP formula and notational symbols as follows:

Cause of action ^ accusing on the part of Plaintiff ^ [defending on the part of Defendant·^ (defending on the part of the Third Party)^ adducing evidence on the part of Plaintiff] ^ [questioning Plaintiff‘s evidence on the part of Defendant·^ adducing evidence on the part of Defendant] ^ questioning Defendant‘s evidence on the part of Plaintiff ^(collecting evidence on the part of Court) ^ [Establishing facts out of facts out of issue on the part of Court ^ Establishing major facts at issue on the part of Court·^ Establishing evidence on the part of Court ^ establishing issue of the case]^ adjudicating evidences adduced and reciprocally questioned by Plaintiff and Defendant ^ finding legally significant facts^ (interpreting legal rules of civil law & civil procedure law)^ applying provisions in statutory law^ deciding

(Notation: ^for ―followed by‖, [·^] for optional sequence between elements therein, ( ) for optional appearance, for iteration of the element)

The sample text is randomly extracted from Qi (2001) —Plaintiff Wang Xilin v. defendants Shanghai Zhaoxia Bookstore (Zhaoxia), Intellectual Property Press of the State Intellectual Property Office (‗the IP Press‘), and Beijing Huangsi Audio & Video Bookstore (‗Huangsi‘) for a copyright dispute. The actualized generic structure is described as follows: Cause of action ^ accusing on the part of Plaintiff ^ adducing evidence on the part of plaintiff ^ defending on the part of Defendant 1 ^ adducing evidence on the part of Defendant 1 ^ defending on the part of Defendant 2 ^ adducing evidence on the part of Defendant 2 ^ defending on the part of Defendant 3 ^ adducing evidence on the part of Defendant 3^ establishing facts out of issue on the part of Court ^ establishing major facts at issue on the part of Court ^ establishing evidence on the part of Court ^ arguing the minor premise of the judicial reasoning in terms of finding legally significant facts at issue by means of adjudicating evidences adduced by Plaintiff and Defendants ^ arguing

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the major premise of the judicial reasoning by applying provisions in the statutory law ^ deciding

5.2. Multi-functional discourse semantic configurations of the generic element of arguing the minor premise of the judicial reasoning and Contextual Configuration of civil judgments in the Mainland of China

In relation to the sample civil judgment, the generic element of arguing the minor premise of judicial reasoning is selected in light of the fact that it serves as the core transitional element (Zhang, J. 2003) of arguing for the case by stating history of the case, presenting arguments and deriving ratio decidendi. This section characterizes the three discourse semantic chains on the experiential, interpersonal and textual metafunctional dimensions in the form of three diagrams. The selected generic element is accordingly construed as a multi-functional discourse semantic configuration. The vertical arrows indicate cohesive relations between lexical items filling transitivity, mood and Theme-Rheme structural elements of each clause of this generic element and related to the dispute of rights and obligations in the civil case concerned, whereas the horizontal arrows signal transitivity, mood and Theme-Rheme functional semantic relations that the cohesive lexical items enter into in the clause they constitute. Thus the vertical lexical cohesive relations running through the lexical items in each clause of the generic element are interwoven and co-patterned with the horizontal functional semantic configurations construed by the corresponding lexical items in each clause of the generic element. In this sense, it is a prerequisite to specify the lexico-grammatical analyses of transitivity, mood and Theme-Rheme structures of each numbered clause in the generic element of arguing the minor premise of the judicial reasoning of the sample text. And it is worth noting that the analysis is performed on the Chinese version.

zhi shi chan quan gai lun di qi zhang zhi shi chan quan de guo ji yuan gao wang xi lin xi bao hu he di ba zhang zhi shi chan quan de jiu fen ji qi chu li liang zhang zhu zuo quan ren

the author of Chapters Seven and 1. Eight of the book An Overview of Intellectual Property: International Plaintiff Wang Xilin is Protection of Intellectual Property Rights and Intellectual Property Right Disputes and Their Resolution.

Token Pr: relational Value Subject Predicator Complement Theme Rheme

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you yuan gao wang xi lin zhuan xie you zhuan li wen xian chu ban she bing xiang you zhu zuo quan de chu ban ding wen zhao dan ren zhu piao qie chao xi le zhi shi chan quan de guo ji bao hu bian de zhi shi chan quan jiu fen yu he zhi shi chan quan de jiu fen ji chu li shi yong quan shu yi shu qi chu li liang zhang nei rong the two chapters International Protection of Intellectual Property A Practical Guide to the Intellectual 2. Rights and Intellectual Property Property Rights Dispute and Resolution plagiarized and pirated Right Disputes and Their Resolution, published by Patent Documents Press which were written by plaintiff with Ding Wenzhao as the chief editor Wang Xilin and to which plaintiff Wang Xilin claims copyright. Actor Pr: material Goal Subject Predicator Complement Theme Rheme

Piao qie chao xi duo da 4 wan yu zi The number of words plagiarized and was over 40, 000. pirated 3. Carrier Pr: relational Attribute Subject Predicator Complement Theme Rheme

(piao qie chao xi) yan zhong qin fan le yuan gao wang xi lin de zhu zuo quan

(words plagiarized a serious infringement upon plaintiff Wang Xilin‘s copyright. 4. and pirated) (Actor) Circumstance Pr: material Goal (Subject) Comment Adjunct Predicator Complement (Theme) Rheme

bei gao zhi shi chan quan chu ban zhu yao chu ban zhi shi chan quan zuo wei she shu ji de zhuan ye chu ban she

a press specialized in publishing 5. Defendant the IP Press, as books about intellectual property, Token Pr: relational Value Subject Predicator Complement Theme Rheme

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(bei gao zhi shi chan quan ying geng zun zhong ta ren de zhi shi chan quan chu ban she) dang give due respect (Defendant the IP Press,) should the intellectual property rights of others, 6. to (Senser) Circumstance Pr: mental Phenomenon (Subject) Modal Adjunct Finite Predicator Complement (Topical Theme) Modulation Theme Rheme

(bei gao zhi shi chan quan qin fan ta ren zhu zuo quan ying ying dang zhi dao chu ban she) cheng dan de fa lv ze ren

for infringement upon the copyright of (Defendant the IP Press) should know 7. others it will be held liable. (Senser) Pr: mental Phenomenon (Subject) Finite Predicator Complement Modulation (Topical Theme) Rheme Theme

bei gao zhi shi chan qin quan yi shu zhu bian quan chu ban she he ding wen zhao yu fu zhu you yu wei xiang ben yuan ti gong bei gao huang si shu bian chang dan jiang dian shen fen the identity of the chief editor Ding Wenzhao and defendant the IP deputy chief editor Chang neither … Because Press ... defendant to us disclosed Danjiang of the book in 8. nor… has Huangsi Bookstore question as the party listed in the infringing book Circumstance Actor Circumstance Pr: material Goal

Conjunctive Residue Subject Finite Predicator Complement adjunct Adjunct Structural Polarity Topical Theme Rheme Theme Theme

qin quan shu ji shang ji zai bing gong bei gao zhi shi chan quan chu 9. cheng wei shi de zhu yao dui wai cheng dan ze ban she ren ren

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as the party listed in the infringing book defendant the IP Press becomes and disclosed to the public … the primary party for external liabilities

Token Pr: relational Value Subject Predicator Complement Theme Rheme

chu ban she ben dui chu ban de shu ji de zhu shen cha yi er qie, fu you shen zuo quan wu, to examine the copyright of the In addition, the publisher has 10. the books it publishes responsibility Circumstance Actor Circumstance Pr: material Range: entity Residue Adjunct Subject Residue Adjunct Predicator Complement Connective Theme Topical Theme Rheme

bei gao zhi shi ben an zhu zuo quan qin suo yi, chan quan chu ban ying dang cheng dan quan de zhu yao ze ren she primarily liable for the defendant the IP 11. For these reasons, should be held copyright infringement in Press this case Circumstance Actor Pr: material Range: entity Residue Adjunct Subject Finite Predicator Complement Connective Theme Topical Theme Modulation Theme Rheme

you qi yu huang si huang si bei gao zhi shu dian tu dui qin fan ta shu dian shi chan bian shu bu qian yue yi jing ren zhu zuo zuo chu le yao qiu cheng quan chu cheng ding de tu shu ding, quan ze ren dan zhu ban she chu ban he tong yao ze zhong ren 12. its Contract for a Publication of judgment Books with the in case of imposing Defendant for contends books -ed copyright provided seeks primary the IP Press liability department of infringement, liability Huangsi on Bookstore Huangsi.

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Pr: Circumstance Circumstance Pr: Range: Pr: Verbiage Sayer Circumstance2 verbal1 2 2 material2 entity verbal3 3 Verbiage1 Predicator Residue Residue Predicator Comple Predicat Complem Subject Finite 1 Adjunct2 Adjunct2 2 ment2 or3 ent3 Complement1 Theme2 Rheme 2 Rheme 3 Theme1 Rheme1

dang shi ren zhi jian zhu zuo quan ben yuan ren wei dui qin quan ze ren de bu neng dui kang ren nei bu yue ding the agreement between the parties of a contract be upheld the claims of the This court holds should not on liability for against copyright owner. infringement 13. Senser Pr: mental1 Actor Pr: material2 Goal

Phenomenon Subject1 Predicator1 Subject2 Finite2 Predicator2 Complement2 Complement1 Theme2 Rheme2 Theme1 Rheme1

yi can kao shu mu yi ye ming bei gao zhi shi chan quan chu ban que ji zai zuo pin bei li yong jian qing qi ze yao qiu she de zuo zhe ke lian xi ling qu ren gao chou wei you

on the ground that the reference 14. book age of the book in a mitigation of Defendant the IP Press question carries its statement seeks its liability that authors can contact the publisher for remunerations

Sayer Circumstance Pr: verbal Verbiage Subject Residue Adjunct Predicator Complement Theme Rheme

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piao qie chao xi ta ren zhu zuo quan nei gai li you bu neng cheng wei rong

as a matter of law…an excuse for its Such contention cannot be 15. plagiarism and piracy, Token Circumstance Pr: relational Value Subject Finite Predicator Complement Modulation Topical Theme Rheme Theme

ben yuan bu yu zhi chi

This court refuse to sustain its validity. 16. Actor Pr: material Range: entity Subject Finite Predicator Complement Topical Theme Polarity Theme Rheme

piao qie bei gao tou zi ji qi xiao chao xi ta huang si yi ying li wei mu di, shou de shu ji cun zai ren zhu zuo shu dian tu zhong quan nei shu bu rong contents plagiarized Defendant investing in the and pirated which Huangsi for publication of and from works 17. contains Bookstore selling a book copyrighted by another person, Circumsta Pr: Pr: Token Value Circumstance2 Existent nce1 relational1 existential2 Residue Complem Subject1 Predicator1 Residue Adjunct 2 Predicator2 Subject2 Adjunct 1 ent1 Theme1 Rheme1 Theme2 Rheme2

(bei gao huang si shu ying dang cheng dan qin quan ze ren dian tu shu bu) 18. (Defendant Huangsi should be held liable for such infringement. Bookstore) (Actor) Pr: material Range: entity

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(Subject) Finite Predicator Complement (Topical Theme) Modulation Theme Rheme

bei gao zhao xia jing ying bu ming yuan gao xiang ben zhi huo ying zhi xiao shou de xi lie shu mei you ti gong wang xi lin yuan ji xi qin fan ta ren zhu zuo quan de zheng ju

evidence that proves that Zhaoxia Plaintiff to provide… Bookstore knew or had reason to know fails this court 19. Wang Xilin with… that the book it sold infringed upon the copyright of others,

Circumstanc Actor Pr: material Range: entity e Residue Subject Finite Predicator Complement Adjunct Topical Polarity Rheme Theme Theme

dui yuan gao zhu zuo quan zhao xia jing ying bu bu gou cheng qin hai an infringement upon Zhaoxia‘s act does not constitute 20. plaintiff‘s copyright. Token Pr: relational Value

Subject Finite Predicator Complement Topical Theme Polarity Theme Rheme

bei gao zhi shi chan ting zhi qin quan pei li quan chu ban she dao qian bing pei chang jian ci, ying dang cheng dan he bei gao huang si yuan gao jing ji sun shi shu dian de min shi ze ren

be ordered to stop their defendant the IP Press For these infringing acts, to and defendant Huangsi should be held liable, reasons, apologize, and to pay 21. Bookstore damages to the plaintiff. Circumstan Actor Pr: material Range: entity ce Residue Subject Finite Predicator Complement Adjunct Connective Modulation Topical Theme Rheme Theme Theme

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yuan gao bei qin quan zuo pin fa biao ying de zui gao pei chang shu’ e can zhao gao chou 5 bei de biao zhun ji yuan gao yin su song zhi chu de he li fei yong deng

five times the maximum amount of remuneration the author The amount of 22. should be is entitled to for publication of its infringed work, plus damages reasonable expenses in connection with litigating this case

Token Pr: relational Value Subject Predicator Complement Theme Rheme

(pei chang shu’ e) zhuo qing jue ding. by the court using its power of （The amount of damages） to be determined discretion. 23. Goal Circumstance Pr: material (Subject) Comment Adjunct Predicator (Theme) Rheme

deng bao pei li dao ben an qin quan xing wei zhu yao kao lv qian fan wei ying xiang she ji de di yu With respect to the the geographic area of the publication of its primary consideration 24. impact of the infringing acts. apology Senser Circumstance Pr: mental Phenomenon Subject Comment Adjunct Predicator Complement Theme Rheme According to the following three figures, the lexical items related to copyright infringement can be summarized as follows: 1) gongmin xiangyoude zhuzuoquan 2) zhishichanquan gailun diqizhang zhishichanquan de guojibaohu he dibazhang zhishichanquan de jiufen jiqi chuli liangzhang zhuzuoquaren 3) you yuangao wangxilin zhuanxie bing xiangyou zhuzuoquan de zhishichanquan de guojibaohu he zhishichanquan de jiufen jiqi chuli liangzhang neirong 4) 4 wanyuzi 5) yuangao wangxilin de zhuzuoquan 6) zhuyao chuban zhishichanquan shuji de zhuanye chubanshe

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7) taren de zhishichanquan 8) qinfan taren zhuzuoquan ying chengdan de falv zeren 9) qinquan yishu zhubian dingwenzhao yu fuzhubian changdanjiang shenfen 10) qinquanshujishang jizai bing gongshi de zhuyao duiwaichengdanzerenren 11) (dui) chuban de shuji de zhuzuoquan 12) benan zhuzuoquanqinquan de zhuyao zeren 13) (dui) qinfan taren zhuzuoquan zeren 14) dangshirenjian dui qinquan zeren de neibu yueding 15) jianqing qizeren 16) piaoqie chaoxi taren zhuzuoquan neirong 17) qinquan zeren 18) beigao zhaoxiajingyingbu mingzhi huo yingzhi xiaoshou de xilie shuji xi qinfan taren zhuzuoquan de zhengju 19) dui yuangao zhuzuoquan qinhai 20) tingzhi qinquan peili daoqian bing peichang yuangao jingji sunshi de minshi zeren 21) yuangao beiqinquan zuopin fabiao yingde zuigao gaochou 5bei de biaozhun ji yuangao yinsusong zhichu de heli feiyong deng 22) benan qinquan xingwei yingxiang sheji de diyu. They stand in dominant lexical cohesive relations of synonymy co-extension, hyponymy co-classification, antonymy co-extension and meronymy co-classification, As is shown in Figure 1, on experiential semantic chains, these lexical cohesive relations interact with different functional semantic relations associated with material, relational, mental, verbal and existential process configurations of each numbered clause of this generic element, including goal-actor (5 times), goal-circumstance (2 times), circumstance-range (5 times), circumstance-actor (1 time), range-actor (6 times), phenomenon-senser (2 times), phenomenon-circumstance (1 time), phenomenon actor-senser (1 time), phenomenon actor-phenomenon goal (1 time), verbiage-sayer (1 time), verbiage circumstance-sayer (1 time), verbiage-circumstance (1 time), verbiage circumstance-verbiage circumstance (1 time), value-token (5 times), attribute-carrier (1 time), existent-circumstance (2 times), existent-actor (1 time). It is obvious that material processes and relational processes are of high frequency in this generic element, which construes the court‘s activities of finding facts of copyright infringement and settling the civil case through adjudicating evidences based on the two litigant parties‘ activities of negotiating the liability for the copyright infringement through adducing their own evidences and reciprocally questioning the other party‘s evidences. It is in this sense that

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we say what the court does in this generic element is argue for the minor premise of the judicial reasoning. In relation to Contextual Configuration of civil judgments in the Mainland of China, based on the experiential semantic chains, Field (Dong 2011) is construed as what is going on associated with the members of the civil lawsuit. It can be derived that the court performs argumentative syllogism judicial reasoning (Zhang, J. 2003) in adjudicating evidences adduced and reciprocally questioned by the two litigant parties, finding legally significant facts, verifying, applying relevant provisions in statutory law, and finally making the final decision of the civil case in conformity with logical syllogism deductive reasoning; whereas the two litigant parties perform their civil litigation (Jiang 2000) in stating claims and reasons, narrating relevant facts, adducing evidences and reciprocally questioning the opponent‘s evidences. In this sense, in terms of contextual analysis, courtroom judgments can be defined as a genre until they are within a situation of courtroom as setting and adjudication as scene. As is displayed in Figure 2, on interpersonal semantic chains, lexical cohesive relations interact with different functional semantic relations associated with mood structure elements and modality elements of each numbered clause of this generic element, including subject-residue adjunct (5 times), complement-subject (20 times), complement-modal adjunct (1 time), complement-modulation (3 times), complement-comment adjunct (1 time), complement-residue adjunct (8 times), complement-negative polarity (4 times), residue adjunct-residue adjunct (2 times), subject-modulation (2 times), subject-comment adjunct (1 time), subject-subject (2 times). It is obvious that complement, subject, residue adjunct, negative polarity, modulation are of high frequency in this generic element. According to SFL, Subject is formulated to be responsible for the functioning of the clause as an interactive event, responsible for the validity of the proposition made by the interlocutors realized in the clause, Complement and Residue Adjunct are participants in the proposition realized by the Residue element, Negative Polarity disclaims the proposition concerned on the positive-negative continuum, and Modulation specifies degrees of obligation to be undertaken by the addressee with the clause viewed as an exchange. It is thus justifiable to assert that the interpersonal chains in this generic element construe interpersonal relationship of opposition between the two parties to this copyright action in competing for the purpose of winning the civil case, and interpersonal relationship of opposition between the court and the two litigant parties in the sense that both Plaintiff and Defendant undertake their litigant activities under the court‘s jurisdiction.

In Contextual Configuration terms, Tenor (Dong 2011) is construed as the heteroglossic interpersonal relationship between participants in the civil lawsuit based on their civil legal relations in civil litigation. It can be derived that the court bear heteroglossic relations of opposition and complementarity with the two litigant parties (Jiang 2000): 1) the court exercises jurisdiction over Plaintiff and Defendant whereas both Plaintiff and Defendant undertake their litigant activities under the court‘s jurisdiction; 2) both the court‘s jurisdictional activities and Plaintiff‘s accusing activities as well as Defendant‘s defending activities make complementary contribution towards the joint goal of settling the dispute of rights and obligations in the civil case; and on the other hand, the two litigant parties stand in heteroglossic relations of opposition and competition in relation to their competing positioned roles of accusing and defending for the purpose of winning the civil case and

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having their claims satisfied. In nature, a courtroom judgment is a mode of institutional multi-participant dialogue rather than the judge‘s own monologue due to the fact that civil judgments typically have a performative function, intending to decide or alter relationships of rights and obligations relevant to some civil dispute by means of convincing parties to civil action the soundness of his argument (Zhang, Z. 2003). As is exhibited in Figure 3, on textual semantic chains, lexical cohesive relations interact with different functional semantic relations associated with Theme-Rheme structure elements of each numbered clause in the generic element, including Theme-Rheme (4 times), Rheme-Theme (19 times), Co-Rheme (9 times), Rheme-topical Theme (5 times), Rheme-polarity Theme (4 times), Rheme-structural Theme (1 time), Rheme-connective Theme (3 times), Rheme-modulation Theme (2 times), Theme 2-Theme 1 (1 time), Rheme 2-Rheme 1 (1 time), Topical Theme-modulation Theme (2 times). It is obvious that Rheme-Theme structure and Co-Rheme structure are of high frequency, and that Theme develops into various types as the text progresses. It can thus be argued that Theme alternating pattern, Rheme focusing pattern and Theme deriving pattern constitute major thematic progression patterns of this generic element, which construes the court‘s successive logical reasoning based on adjudicating the evidences adduced and reciprocally questioned by the two litigant parties, and then finding legally significant facts concerning whether copyright infringement occurs to the plaintiff, who is liable for the copyright infringement and how to decide on the rights and obligations between the two litigant parties. In Contextual Configuration terms, Mode is construed as what role language is playing in civil litigation (Dong 2011). It can be concluded that language performs expository and persuasive function in the process of legal reasoning in deciding the case in the form of logical syllogism characterized with finding legally significant facts (the minor premise), applying legal rules in statutory law (the major premise) , and deriving the final decision (Zhang, J. 2003). Therefore, in terms of the rhetorical mode of language in relation to the judicial decision making environment, language plays narrative, expository and argumentative roles. In more detailed terms, it can be concluded that the discourse community exercising jurisdiction tend to encode their judicial judgments in line with the organization of argumentative texts (Dong 2011). Technically speaking, the mode of judicial reasoning is characteristic of non-linear sophisticated subsumption (Shi & Zhang 2000; Zhang, Z. 1998) in the form of successive logical reasoning based on adjudicating the evidences adduced and reciprocally questioned by the two litigant parties.

gong min xiang you de zhu zuo quan Goal-Actor The right of a citizen to the copyright fa lv of his works the law

Hyponymy: co-classification

zhi shi chan quan gai lun di qi zhang zhi shi chan quan de guo ji bao hu he di ba zhang zhi shi chan quan de jiu fen ji qi chu li liang zhang zhu zuo quan ren Value-token the author of Chapters Seven and Eight of the book An Overview of yuan gao wang xi lin Intellectual Property: International Protection of Intellectual Property Plaintiff Wang Xilin Rights and Intellectual Property Right Disputes and Their Resolution

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Synonymy: co-extension

you yuan gao wang xi lin zhuan xie bing xiang you zhu zuo you zhuan li wen xian chu ban quan de zhi shi chan quan de guo ji bao hu he zhi shi she chu ban ding wen zhao chan quan de jiu fen ji qi chu li liang zhang nei rong dan ren zhu bian de zhi shi Goal-actor chan quan jiu fen yu chu li shi the two chapters International Protection of Intellectual yong quan shu yi shu Property Rights and Intellectual Property Right Disputes and A Practical Guide to the Their Resolution, which were written by plaintiff Wang Xilin Intellectual Property Rights and to which plaintiff Wang Xilin claims copyright Dispute and Resolution published by Patent Documents Press with Ding Wenzhao as the chief editor Meronymy: co-classification

Attribute-Carrier 4wan yu zi Piao qie chao xi over 40, 000 words plagiarized and pirated

Hyponymy: co-classification

yuan gao wang xi lin de zhu zuo Goal-actor (Piao qie chao xi) quan (words plagiarized and pirated) plaintiff Wang Xilin‘s copyright

Synonymy: co-extension

zhu yao chu ban zhi shi chan quan shu ji de zhuan ye chu ban she bei gao zhi shi chan Value—token quan chu ban she a press specialized in publishing books about intellectual property Defendant the IP Press

Synonymy: co-extension

Goal—actor (bei gao zhi shi chan quan chu ta ren de zhi shi chan quan the intellectual property rights of ban she) others (Defendant the IP Press)

antonymy: co-extension

qin fan ta ren zhu zuo quan ying cheng dan de

fa lv ze ren Phenomenon-senser (bei gao zhi shi chan for infringement upon the copyright of others it quan chu ban she) will be held liable (Defendant the IP Press)

Synonymy: co-extension

21 bei gao zhi shi chan quan qin quan yi shu zhu bian ding wen zhao yu fu zhu bian chu ban she he bei gao Goal-actor chang dan jiang shen fen huang si shu dian the identity of the chief editor Ding Wenzhao and deputy chief defendant the IP editor Chang Danjiang of the book in question as the party Press …defendant Huangsi listed in the infringing39 book Bookstore

Goal-circumstance

Synonymy: co-extension xiang ben yuan to the court

qin quan shu ji shang ji zai bing gong shi de zhu yao dui wai cheng Value-token dan ze ren bei gao zhi shi chan quan chu as the party listed in the infringing book and disclosed to the public … ban she the primary party for external liabilities defendant the IP Press

antonymy: co-extension

Circumstance-actor chu ban she ben shen ( dui ) chu ban de shu ji de zhu zuo quan the publisher the copyright of the books it publishes Circumstance-range

antonymy: co-extension shen cha yi wu the responsibility to examine

bei gao zhi shi chan quan Range-actor ben an zhu zuo quan qin quan de zhu chu ban she yao ze ren ren defendant the IP Press primarily liable for the copyright infringement in this case

hyponymy: co-classification

Verbiage circumstance- sayer Verbiage circumstance—verbiage circumstance

bei gao zhi shi chan quan ( dui ) qin fan ta ren zhu zuo quan ze ren qi yu huang si shu dian shu bu chu ban she for liability in case of copyright infringement qian ding de tu shu chu ban he defendant the IP Press tong zhong Synonymy: its Contract for Publication of Books Circumstance-range co-extension with the books department of

Circumstance-range Huangsi Bookstore

you huang si shu dian cheng dan zhu yao ze ren dang shi ren jian dui qin quan ze ren de yue ding imposing primary liability on nei bu yue ding for liability Huangsi the agreement between the parties of a

contract on liability for infringement — Phenomenon actor phenomenon goal

Phenomenon actor--senser Synonymy: zhu zuo quan ren co-extension the copyright owner

ben yuan jian qing qi ze ren This court a mitigation of its liability Verbiage--circumstance Verbiage—sayer yi can kao shu mu yi ye ming que ji zai zuo pin bei li yong de zuo zhe ke bei gao zhi shi chan quan 22 lian xi ling qu gao chou wei you chu ban she Antonymy: co-extension on the ground that the reference book Defendant the IP Press age of the book in question carries its statement that authors can contact the publisher for remunerations 40

piao qie chao xi ta ren zhu zuo quan nei rong Existent—actor contents plagiarized and pirated from works bei gao huang si shu dian tu Synonymy: co-classification shu bu copyrighted by another person Defendant Huangsi Bookstore

Existent—circumstance gai li you Hynonymy: Such contention Existent-circumstance co-classificatio Token--value n yi ying li wei mu di tou zi ji qi xiao shou gai li you piao qie for investing de shu ji zhong Such contention qin quan ze ren investing in the chao xi ta liability for infringement publication of and ren zuo pin selling a book de he fa yi

Hyponymy: co-classification ju Range—actor repetition: as a matter co-classification of law be an excuse for (bei gao huang si shu dian bei gao zhao xia jing ying bu ming zhi huo ying zhi its tu shu bu) xiao shou de xi lie shu ji xi qin fan ta ren zhu zuo quan plagiarism (Defendant Huangsi Bookstore) de zheng ju (gai li you) and piracy Zhaoxia Bookstore knew or had reason to know that the (Such book it sold infringed upon the copyright of others contention)

Range—actor Range—actor Range—circumstance

Synonymy: ben yuan co-extension The court xiang ben yuan yuan gao wang xi lin To the court Plaintiff Wang Xilin

Value—token dui yuan gao zhu zuo quan qin hai zhao xia jing ying bu an infringement upon Zhaoxia Bookstore plaintiff‘s copyright

Antonymy: co-extension Range-circumstance jian ci For these reasons, ting zhi qin quan pei li dao qian bing bei gao zhi shi chan quan pei chang yuan gao jing ji sun shi de min Range—actor chu ban she he bei gao shi ze ren huang si shu dian to stop their infringing acts, to apologize, defendant the IP Press and pei chang shu ’ e and to pay damages to the plaintiff defendant Huangsi Bookstore The amount of damages Hyponymy: co-classification Range--actor yuan gao bei qin quan zuo pin fa biao ying de zui gao gao chou 5 bei de biao zhun ji yuan gao yin su song zhi chu de he li fei yong deng five times the maximum amount of remuneration the author is entitled to for publication of its infringed work, plus reasonable expenses in connection with litigating this case

Repetition: co-classification

Hyponymy: (pei chang shu’e) co-classification (The amount of damages) 23

41

phenomenon--circumstance zhu yao ben an qin quan xing wei ying xiang primary Goal--Circums she ji de di yu tance the geographic area of the impact of the zhuo qing infringing acts Phenomenon—senser using its power of discretion deng bao pei li dao qian fan wei With respect to the publication of its apology

FIGURE1 Experiential semantic chains in the generic element of arguing the minor premise of the judicial reasoning

gong min xiang you de zhu zuo quan Subject—residue The right of a citizen to the copyright adjunct fa lv of his works the law

Hyponymy: co-classification

zhi shi chan quan gai lun di qi zhang zhi shi chan quan de guo ji bao hu he di ba zhang zhi shi chan quan de jiu fen ji qi chu li Complement liang zhang zhu zuo quan ren -Subject the author of Chapters Seven and Eight of the book An Overview of yuan gao wang xi lin Intellectual Property: International Protection of Intellectual Property Plaintiff Wang Xilin Rights and Intellectual Property Right Disputes and Their Resolution

Synonymy: co-extension

you yuan gao wang xi lin zhuan xie bing xiang you zhu zuo quan de zhi shi chan quan de guo ji bao hu he zhi shi you zhuan li wen xian chu ban chan quan de jiu fen ji qi chu li liang zhang nei rong she chu ban ding wen zhao dan ren zhu bian de zhi shi the two chapters International Protection of Intellectual Complement- chan quan jiu fen yu chu li shi Property Rights and Intellectual Property Right Disputes and subject yong quan shu yi shu Their Resolution, which were written by plaintiff Wang Xilin A Practical Guide to the and to which plaintiff Wang Xilin claims copyright Intellectual Property Rights Dispute and Resolution published by Patent Documents Press with Meronymy: co-classification Ding Wenzhao as the chief editor

Complement-subject 4wan yu zi Piao qie chao xi over 40, 000 words plagiarized and pirated

Hyponymy: co-classification

yuan gao wang xi lin de zhu zuo Complement (Piao qie chao xi) quan -(subject) (words plagiarized and pirated) plaintiff Wang Xilin‘s copyright

Synonymy: co-extension

24

42

zhu yao chu ban zhi shi chan quan shu ji de zhuan ye chu ban she a press specialized in publishing books about Complement-subject bei gao zhi shi chan intellectual property quan chu ban she Defendant the IP Press

Synonymy: co-extension

ta ren de zhi shi chan quan Complement-(subject) (bei gao zhi shi chan quan chu the intellectual property rights of ban she) others (Defendant the IP Press) geng Complement- Modal adjunct antonymy: co-extension

Complement--modulation qin fan ta ren zhu zuo quan ying cheng dan de ying dang fa lv ze ren Complement-(subject) should for infringement upon the copyright of others it will be held liable (bei gao zhi shi chan quan chu ban she) (Defendant the IP Press) Synonymy: co-extension bei gao zhi shi chan quan Complement- qin quan yi shu zhu bian ding wen zhao yu fu zhu bian chu ban she he bei gao subject chang dan jiang shen fen huang si shu dian the identity of the chief editor Ding Wenzhao and deputy chief defendant the IP Complement- residue editor Chang Danjiang of the book in question as the party Press …defendant Huangsi adjunct listed in the infringing book Bookstore

xiang ben yuan to the court Complement-residue you yu adjunct Because Synonymy: co-extension Complement-polarity

wei neither … nor… has qin quan shu ji shang ji zai bing gong shi de zhu yao dui wai cheng bei gao zhi shi chan quan chu Complement-subject dan ze ren ren ban she as the party listed in the infringing book and disclosed to the public … defendant the IP Press the primary party for external liabilities

antonymy: co-extension Residue Adjunct-subject Residue Adjunct-complement

chu ban she ben shen ( dui ) chu ban de shu ji de zhu zuo quan the publisher the copyright of the books it publishes shen cha yi wu the responsibility to examine Residue Adjunct-residue adjunct antonymy: co-extension er qie In addition

bei gao zhi shi chan quan Complement-subject ben an zhu zuo quan qin quan de zhu chu ban she yao ze ren Complement-Residue adjunct defendant the IP Press primarily liable25 for the copyright suo yi infringement in this case For the reasons

43

hyponymy: co-classification

Residue Adjunct—residue adjunct

bei gao zhi shi chan quan Residue Adjunct-subject( dui ) qin fan ta ren zhu zuo quan ze ren qi yu huang si shu dian shu bu chu ban she for liability in case of copyright infringement qian ding de tu shu chu ban he defendant the IP Press tong zhong Synonymy: its Contract for Publication of Books Residue co-extension Residue with the books department of Adjunct -complement Adjunct-complement Huangsi Bookstore

dang shi ren jian dui qin quan ze ren de you huang si shu dian nei bu yue ding cheng dan zhu yao ze ren yueyue ding imposing primary liability on the agreement between the parties of a Subject-complement forfor liability Huangsi contract on liability for infringement zhu zuo quan ren Subject-subject Subject-modulation Synonymy: the copyright owner co-extension ben yuan bu neng This court jian qing qi ze ren should not a mitigation of its liability Complement- residue adjunct yi can kao shu mu yi ye ming que ji zai zuo pin bei li yong de zuo zhe ke Complement-subject bei gao zhi shi chan quan lian xi ling qu gao chou wei you chu ban she Antonymy: co-extension on the ground that the reference book Defendant the IP Press age of the book in question carries its statement that authors can contact the publisher for remunerations

Subject-subject bei gao huang si shu dian tu piao qie chao xi ta ren zhu zuo quan nei rong Synonymy: co-classification shu bu contents plagiarized and pirated from works Defendant Huangsi Bookstore copyrighted by another person gai li you Such Subject-complement Subject-residue adjunct contention Subject- residue adjunct Hynonymy:co- repetition: piao qie extension yi ying li wei tou zi ji qi xiao co-classification chao xi ta mu di shou de shu ji ren zuo pin for investing zhong de he fa yi gai li you qin quan ze ren investing in the Such ju liability for infringement publication of and contention as a matter Complement-subject selling a book of law be an

repetition: excuse for (bei gao huang si shu dian Complement--modulation Hyponymy: co-extension co-classification its tu shu bu) Subject-modulat plagiarism (Defendant Huangsi Bookstore) ion and piracy bei gao zhao xia jing ying bu ming zhi huo ying zhi xiao shou de xi lie shu ji xi qin fan ta ren zhu zuo quan bu neng ying dang de zheng ju (gai li cannot should Zhaoxia Bookstore knew or had reason to know that the you) book it sold infringed upon the copyright of others (Such conte Complement-subject ntion) Complement-subject bu Synonymy: Does not yuan gao wang xi lin co-extension Plaintiff Wang Xilin Complement-polarity fa yuan The court

Complement-polarity Complement —residue adjunct bu does not dui yuan gao zhu zuo quan Complement-polarity Complement-subject qin hai zhao xia jing ying bu 26 an infringement upon xiang ben yuan Zhaoxia Bookstore plaintiff‘s copyright To the court mei you does not 44

Antonymy: co-extension jian ci For these Complement-residue reasons, adjunct ting zhi qin quan pei li dao qian bing pei chang yuan gao jing ji sun shi de min Complement-subject bei gao zhi shi chan quan shi ze ren chu ban she he bei gao to stop their infringing acts, to apologize, huang si shu dian and to pay damages to the plaintiff defendant the IP Press and

Complement-modulation defendant Huangsi Bookstore Hyponymy: co-classification

ying dang should

yuan gao bei qin quan zuo pin fa biao ying de zui gao gao chou 5 bei de biao Complement-subject zhun ji yuan gao yin su song zhi chu de he li fei yong deng pei chang shu ’ e five times the maximum amount of remuneration the author is entitled to for The amount of damages publication of its infringed work, plus reasonable expenses in connection with litigating this case

Repetition: co-classification Hyponymy: co-extension

Complement—Comment Adjunct

(pei chang shu’ e) ben an qin quan xing wei ying xiang zhu yao (The amount of she ji de di yu primary damages) Subject-Comment the geographic area of the impact of the Adjunct infringing acts Complement-subject deng bao pei li dao qian fan wei zhuo qing With respect to the publication of using its power of its apology discretion FIGURE 2 Interpersonal semantic chains in the generic element of arguing the minor premise of the judicial reasoning

gong min xiang you de zhu zuo quan Theme—Rheme fa lv The right of a citizen to the copyright the law of his works

Hyponymy: co-classification

zhi shi chan quan gai lun di qi zhang zhi shi chan quan de guo ji bao hu he di ba zhang zhi shi chan quan de jiu fen ji qi chu li Rheme—Theme liang zhang zhu zuo quan ren the author of Chapters Seven and Eight of the book An Overview of yuan gao wang xi lin Intellectual Property: International Protection of Intellectual Property Plaintiff Wang Xilin Rights and Intellectual Property Right Disputes and Their Resolution

Synonymy: co-extension 27

45

you zhuan li wen xian chu ban she chu ban ding wen zhao you yuan gao wang xi lin zhuan xie bing xiang you zhu zuo dan ren zhu bian de zhi shi quan de zhi shi chan quan de guo ji bao hu he zhi shi chan quan jiu fen yu chu li shi chan quan de jiu fen ji qi chu li liang zhang nei rong Rheme—Theme yong quan shu yi shu A Practical Guide to the the two chapters International Protection of Intellectual Intellectual Property Rights Property Rights and Intellectual Property Right Disputes and Dispute and Resolution published Their Resolution, which were written by plaintiff Wang Xilin by Patent Documents Press with and to which plaintiff Wang Xilin claims copyright Ding Wenzhao as the chief editor

Meronymy: co-classification

Rheme—Theme 4wan yu zi Piao qie chao xi over 40, 000 words plagiarized and pirated

Hyponymy: co-classification

yuan gao wang xi lin de zhu zuo Rheme—(Theme) (Piao qie chao xi) quan (words plagiarized and pirated) plaintiff Wang Xilin‘s copyright

Synonymy: co-extension

zhu yao chu ban zhi shi chan quan shu ji de zhuan ye chu ban she Rheme—Theme bei gao zhi shi chan a press specialized in publishing books about quan chu ban she intellectual property Defendant the IP Press

Synonymy: co-extension

ta ren de zhi shi chan quan the intellectual property rights of Rheme—Theme others (bei gao zhi shi chan quan chu ban she) geng (Defendant the IP Press)

Co-Rheme antonymy: co-extension

Co-Rheme qin fan ta ren zhu zuo quan ying cheng dan de

ying dang fa lv ze ren Rheme—Theme (bei gao zhi shi chan should for infringement upon the copyright of others it quan chu ban she) will be held liable (Defendant the IP Press)

Synonymy: co-extension

28 Co—Rheme bei gao zhi shi chan quan Rheme—topic qin quan yi shu zhu bian ding wen zhao yu fu zhu bian xiang ben yuan chu ban she he bei gao al Theme chang dan jiang shen fen to the court huang si shu dian the identity of the chief editor Ding Wenzhao and deputy chief defendant the IP editor Chang Danjiang of the book in question as the party Press …defendant Huangsi listed in the infringing book46 Bookstore

Rheme —Polarity Theme wei neither … nor… has Rheme—structural you yu Theme Synonymy: co-extension Because

qin quan shu ji shang ji zai bing gong shi de zhu yao dui wai cheng Rheme—Theme dan ze ren ren bei gao zhi shi chan quan chu as the party listed in the infringing book and disclosed to the public … ban she defendant the IP Press the primary party for external liabilities

antonymy: co-extension

Rheme-topical Theme Co—Rheme chu ban she ben shen shen cha yi wu the publisher ( dui ) chu ban de shu ji de zhu zuo quan the responsibility to examine the copyright of the books it publishes

Rheme—connective Theme er qie antonymy: co-extension In addition

Rheme—topical bei gao zhi shi chan quan Theme ben an zhu zuo quan qin quan de zhu Rheme—connective Theme chu ban she yao ze ren defendant the IP Press primarily liable for the copyright suo yi infringement in this case For the reasons

hyponymy: co-classification

Rheme 2—Theme 2 bei gao zhi shi chan quan Rheme 2—Theme 1 ( dui ) qin fan ta ren zhu zuo quan ze ren qi yu huang si shu dian shu bu chu ban she for liability in case of copyright infringement qian ding de tu shu chu ban he defendant the IP Press tong zhong Synonymy: its Contract for Publication of Books co-extension Co—Rheme 2 with the books department of Co—Rheme 2 Huangsi Bookstore

you huang si shu dian yue ding dang shi ren jian dui qin quan ze ren de for liability cheng dan zhu yao ze ren imposing primary liability on nei bu yue ding

Huangsi the agreement between the parties of a — contract on liability for infringement Theme 2 Rheme 2 zhu zuo quan ren the copyright owner Synonymy: Theme 2—Theme 1 Topical Theme co-extension — 2 Modulation Theme 2 ben yuan Co—Rheme yi can kao shu mu yi ye ming que ji This court bu neng jian qing qi ze ren zai zuo pin bei li yong de zuo zhe ke should not a mitigation of its liability lian xi ling qu gao chou wei you 29 on the ground that the reference book Rheme—Theme age of the book in question carries its statement that authors can contact the publisher for remunerations

47

bei gao zhi shi chan quan chu ban she Antonymy: co-extension Defendant the IP Press Synonymy: co-classification

bei gao huang si shu dian tu Rheme—Theme piao qie chao xi ta ren zhu zuo quan nei rong shu bu contents plagiarized and pirated from works gai li you Defendant Huangsi Bookstore copyrighted by another person Such contention Theme—Rheme

Rheme 2—Rheme 1 Rheme 2-Theme 2 repetition: Hynonymy:co- piao qie co-classification extension chao xi ta yi ying li wei tou zi ji qi xiao shou ren zuo pin mu di de shu ji zhong de he fa yi qin quan ze ren for investing investing in the Topical ju Rheme-(topical liability for infringement publication of and Theme-Modulation as a matter Theme Theme) selling a book of law be an

(bei gao huang si shu dian Hyponymy: excuse for tu shu bu) Rheme-modulation Theme co-extension bu neng its (Defendant Huangsi Bookstore) (gai li cannot plagiarism bei gao zhao xia jing ying bu ming zhi huo ying zhi you) and piracy ying dang xiao shou de xi lie shu ji xi qin fan ta ren zhu zuo quan (Such should de zheng ju contentio Zhaoxia Bookstore knew or had reason to know that the n) book it sold infringed upon the copyright of others (gai li you) (Such contention) Rheme—Theme Synonymy: Rheme—Theme co-extension bu Co—Rheme Does not fa yuan Rheme-Polarity Theme The court yuan gao wang xi lin Plaintiff Wang Xilin Rheme-Polarity Theme bu does not dui yuan gao zhu zuo quan Rheme-Polarity qin hai Theme zhao xia jing ying bu Rheme—Theme an infringement upon Zhaoxia Bookstore xiang ben yuan plaintiff‘s copyright To the court

Rheme-connective Antonymy: co-extension Theme mei you jian ci does not For these ting zhi qin quan pei li dao qian bing reasons, pei chang yuan gao jing ji sun shi de min Rheme-topical Rheme-Modulation Theme shi ze ren Theme bei gao zhi shi chan quan to stop their infringing acts, to apologize, chu ban she he bei gao and to pay damagesHyponymy: to the plaintiff co-classification huang si shu dian ying dang defendant the IP Press and should defendant Huangsi Bookstore

yuan gao bei qin quan zuo pin fa biao ying de zui gao gao chou 5 bei de biao Rheme—Theme zhun ji yuan gao yin su song zhi chu de he li fei yong deng pei chang shu’ e five times the maximum amount of remuneration the author is entitled to for The amount of damages publication of its infringed work, plus reasonable expenses in connection with litigating this case

Repetition: co-classification Hyponymy: co-extension

30 Co—Rheme ben an qin quan xing wei ying xiang zhu yao she ji de di yu primary the geographic area of the impact of the infringing acts 48

(pei chang shu’ e) (The amount of damages) deng bao pei li dao qian fan wei Rheme—Theme With respect to the publication of its apology (Theme)—Rheme

zhuo qing jue ding to be determined by the court using its power of discretion

FIGURE 3 Textual semantic chains in the generic element of arguing the minor premise of the judicial reasoning

6. Conclusion

The reform of fabrication of civil judgments in the Mainland of China has been attracting tremendous attention from the community of legal professionals with the reform of court proceedings stipulated in Five-Year Plan for the Reform of Courts consecutively issued by the People‘ Supreme Court of China in 1999, 2004 and 2009. In SFL social semiotic terms, genre-specific semantics in civil judgments is associated with institutionally-based social construction because the generic structure is activated by and construes a social structure embodied in contextual configuration. With efforts to justify the judicial decision and enhance the transparency of civil litigation practices involved, the analytical results reported in this paper indicate that civil judgments in the Mainland of China are progressing into an argumentative genre in three ways: 1) on the experiential metafunctional dimension, finding legalized facts and interpreting and applying legal rules based on adjudicating evidences adduced and reciprocally questioned by plaintiff and defendants; 2) on the interpersonal metafunctional dimension, enacting heteroglossic relations of opposition and complementarity between judges and litigants; 3) on the textual metafunctional dimension, reasoning the substantive and procedural legitimacy of the decision by means of sophisticated subsumption.

ACKNOWLEDGMENTS

This paper is sponsored by Research Funds for Humanities and Social Sciences for Youth granted by Ministry of Education of P.R.C. (10YJC740025), the Social Science Fund of Beijing Municipality (12WYB014), the National Social Science Fund of China (14CYY021) and Fundamental Research Fund for Central Universities in China granted by Ministry of Education of P.R.C. (YWF-14-WYXY-007).

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51 Legislation Translation in China: A Perspective of Horizontal Equivalence

LUPING ZHANG

China University of Political Science and Law

BIODATA Luping Zhang, received his MA in English from Guangdong University of Foreign Studies, is now a lecturer at the China University of Political Science and Law teaching Legal English to law students. His research interest is in business law-related translation, inter alia the system-bound technical differences between the Chinese and English legal terminology. He can be reached at [email protected].

ABSTRACT Legislation translation in China has for a long time been suffering from the failure of not being able to effectively represent legislative meanings of source texts. Horizontal equivalence requirement to legislation translation, adopted as a major guiding rule by most law translators, is blamed to have caused the problem of linguistic ambiguity in law translation. In attempt to explore the causes of the linguistic ambiguity resulting from wide application of horizontal equivalence principle, analogous approach is employed in this paper to compare legislative environment in some bilingual jurisdictions. Literal copy of syntactic structures from source language, ineffective reproduction of technical terminology, and lack of adequate quality control mechanism in China are among the causes that attribute to the linguistic ambiguity in legislation translation. A combination of horizontal equivalence principle with vertical equivalence principle is proved to be effective in compensating the deficiencies in legislation translation in China.

KEYWORDS horizontal equivalence principle, vertical equivalence principle, China‟s legislation translation, linguistic ambiguity, legislative intention, effective communication

52 1. Introduction

Law translation studies in China began at a fairly late stage. The earliest identifiable article in the academia about law translation in China appeared around the mid-1980s. The study conducted by Li and Hu (2006) showed that, up until 2004, academic articles focusing on lexical aspects and general linguistic features of legal language to be dealt with in law translation alone composed of over 50 percent of the covered articles written during the period. Majority articles of this phase are repetitive and overlapping in nature, dealing primarily with the lexical features (as in Song, 2004; Chen, 2004; Zhu, 2004) or broad linguistic features (as in Wang, 2003; Jin & Hu, 2000) of legal language in a very broad sense (2006), and very often jumping to too broad conclusions or only remotely connected conclusions. They held little or no particular regard to the factors that are substantive to pin down the problems frequently encountered in legislation translation in China, i.e., diversity of legal texts deserving special attention, responses from target readers, the particular legal system that sets China apart from the rest of the world, translators‟ creativities limited by institutional power, and analogies to legal translation studies in other monolingual or bilingual jurisdictions. While it aroused people‟s concern that these over-generalized studies had barely touched upon the concrete problems in legislation translation practice in China, the situation from 2005 and onward did not seem to have marked much actual advancement. Statistically speaking, the number of articles concerning law translation since 2005 has been remarkably accelerated, with the size of which being almost five times1 as big as those published during the preceding period. However, the overall rise in the number of law translation-related articles alone contributed not much to the settlement of the problems in the field of study. The later study found that there were proportional changes in the subject matters of the study, though, i.e., the rise in the percentage of the articles handling lexical aspects (as in Jiang, 2007; Zhang & Gao, 2005) or broad linguistic features (as in Xiao, 2007) in contrast to the decrease in the number of articles dealing with other subject matters in law translation2. Nevertheless, the change did not reverse the situation that the study as a whole still has to face the perennial issue of not being able to

1 The statistics quoted in this paragraph relies on a study made by me as a continuation of study conducted by Li and Hu (2006). Limiting my research to the period from January, 2005 to May, 2012, 705 qualified law translation-related article entries were pulled out from the Wangfang Database, one of the biggest academic databases in China. The result clearly shows the recent trend in the study of law translation in China. 2 As a result of close analysis on the subject matters of the covered articles, articles focusing on broad linguistic features of law language took up a total of 19.7% of all covered articles entries, while articles on lexical features occupied almost half in size (a total percentage of 41.1%).

53 effectively communicate linguistically unambiguous legislative meanings in English. However, articles of this period did have dealt with a relatively wider area though. A few examples showing the extended areas of study include syntactical features of law language (Guo, 2007), intrinsic linguistic differences between English and Chinese language patterns, punctuation issues deserving attention in the target text (as in Wang, 2005), and even the application of corpus to the study (as in Jiang, 2005), etc. Nevertheless, these studies are still blamed for their shallowness and repetitive natures (Li & Hu, 2006). For a long time in history, Chinese linguists have been devoting themselves to the attesting of the validity of the thought prevalent during the day that general translation theories most popular in time are universally applicable to approach problems particular to China‟s law translation. Some major translation theories for this purpose include Nida‟s theory of functional equivalence (as in Qian, 2006), domestication or foreignization theory (as in Wang, 2005; Liu, 2004), and a relatively recent one, Skopos theory by German scholar Vermeer (Zhang & Shen, 2005). While Chinese scholars seem to be content with their present undertaking, linguists and law practitioners in other countries have already raised doubts about the efficiency of applying a single generalized theory to approach concrete problems where a lot more particulars need to be taken care of (Weston, 1991). In order to avoid the consequences resulting from alienating theoretical principles from real life needs in law translation, these linguists proposed that a more practical approach should be explored to meet the ultimate goal of facilitating legal communications among different language communities (Šarčević, 2000). This paper sets out a broad scenario of legislation translation practice in China, analyzes its current problems, and offers a proposal that might contribute to the solution of the problems. A close examination to horizontal equivalence principle (HEP) and vertical equivalence principle (VEP), coupled with analysis on the bilingual legislation in Hong Kong and law translation practices in Japan, is intended to unfold the possibility that China‟s legislation translation practice may actually benefit from a switch of translational approach from HEP to a more liberal one, i.e., VEP.

2. Law translation or legislation translation?

Most law translation studies in China do not distinguish among legislative language, judicial language, and law enforcement language (Du, 2004). According to Du, legislative language is represented by languages used in statutory documents, such as acts and ordinances, administrative rules and regulations, business contracts, and other legislative

54 texts. Language of this kind requires highest linguistic precision possible. It is featured by generality of expressions, formality of styles, great significance of social impact, and strong denotative nature. Judicial languages and law enforcement languages represent law language with lower requirements on linguistic precision and formality. For example, some colloquial expressions, as usually are considered as taboo in legislative texts, are often seen as being employed in court trials and at some law enforcement occasions. It is therefore erroneous to use law translation where the expression legislation translation should have been the most accurate choice. Such misapplication is so prevalent that people are often led to believe that law translation is synonymous to legislation translation. Deborah Cao, an Australian scholar specialized in legal translation studies, also made similar distinctions (2008, pp. 8-12). Among all other aspects, Cao distinguished translating domestic statutes and international treaties from translating private legal documents, scholarly works, and case laws. She further suggested that translators should learn to adapt translation approaches to different linguistic situations with full regards to distinctive textual types and intended functions of each source text. Though Cao made further distinctions between domestic statutes and international treaties, this paper will focus on a broader scenario of legislation translation in China as a whole.

3. Legislation translation practice in China

Legislation translation in China emerged in response to the growing needs for international communications among law elicits at an earlier stage and later on lay people when globalization enabled people to move more freely among different cultures. Functionally speaking, legislation translation distinguishes authenticated legislation from translated legislative texts for information purposes (Cao, 2007; Šarčević, 2000). Switzerland, Canada, the EU, and Hong Kong operate at the forefront of bilingual legislation system, whereas Japan, Russia Confederation, and China have their legislation translated solely for informative purposes. Despite the fact that the translated version of legislation was never conferred same equal status as the Chinese version, the call for bilingual legislation in China is growing ever higher each day3. In many economically as well as demographically better prepared regions, such as Shanghai, Shenzhen, and Beijing, people have even started to try to

3 See popular blog discussion about the feasibility of bilingual legislation in Shenzhen and a few other mainland cities available at .

55 reach out for the possibility of converting these cities into bilingual jurisdictions (Xie, 2008). Legislation translation in China is relatively a recent and inexperienced undertaking. Not until the early 1990s, the National People‟s Congress of China has begun to assign a small group of law translators onto the job, which marked the beginning of governmental efforts in legislation translation (Yim, 1996). Since then, the progress has accelerated, with the joint participation of the National People‟s Congress, the State Council, and a few private groups and individual expertise4. Endeavors beyond governmental efforts include a few law schools, academic institutions, publishing houses, and some individual efforts. However, the almost spontaneous involvements in legislation translation by various parties did not generate the equally satisfactory results as the initiators once hoped. The translated texts were often being criticized as being overtly source text-oriented. Credibility of the translation was questioned, because readers found themselves reluctant to rely on the translation for their own particular needs, especially when a cross-country litigation where China held the jurisdiction was involved. In particular, readers complained about ambiguities of the translated legal terminologies, unequivocal meanings of a language pair, deviance from English legal language features, and too many informal or colloquial expressions contained in the target language. All of these, according to Professor Song, have seriously affected readers‟ fair comprehensibility (2006). In addition, other than a few identifiable legislation translation databases5 with limited translation collections, the sources for most legislation translation in circulation were hard to trace, and this was even true with some publication institutions which have, from time to time, issued translation copies (either in the form of an isolated piece of law translation or categorized law translation collections) without inserting any translator or copyright information. Leaving copyright issues alone, the chaos is further messed up by the truth that poor quality control mechanism, obscurity of language, and incongruity of legal terms too often found in these translations easily left people with a false impression

4 Central governmental efforts further distinguish between the National People‟s Congress and the State Council, with the former being responsible for translations of judicial acts and laws enacted by the People‟s Congress and the latter administrative laws. Local law translation falls within the domain of local government. For more information, please refer to: , and . 5 Two biggest law translation databases in China are maintained by Beijing University and the National People‟s Congress respectively, with The Laws and Regulations Database managed by Beijing University being the single most comprehensive legislation translation database in China. Yet its paid-service nature restricts its service availability to a limited group of readers. The database is available at .

56 that legislation translation itself was intrinsically incomprehensible. The Laws and Regulations Database of the People‟s Republic of China, a law translation project managed by Beijing University Center for Legal Information on a website called Beida Fabao (The Magic Tool for Law Practitioners), available to the public through paid service, is to date the most comprehensive, if not the most credible legislation translation database in current China. Yet its translation sustains deficiencies in many ways. It does no better, compared with those vast randomly available online translations whose sources are hard to define, in bringing English translations in line with commonly accepted English legal language structure. Most translations, as being commented by critics, still largely followed a source text-oriented translation mode, made few bold challenges to the existing terminology apparatus, and exercised little caution in eliminating grammatical fractions. The study aims at analyzing and generalizing the current tendencies in the field so as to offer a comprehensive scenario of current situations to law practitioners as well as other interested parties.

4. Horizontal equivalence or vertical equivalence?

HEP is defined as a principle of aligning the source and target text in such a way that two linguistic referents, inserted at parallel locations in source and target texts, denote the same linguistic meanings (Revell, 1998). Linguistic units of source and target texts aligned in accordance to HEP, are said to bear equivalent denotative meanings if compared at a clausal level (or even at a lexical level in a stricter sense). Most source text-oriented translation approaches, like literal equivalence principle and transcription (Harvey, 2003), are believed most likely to produce translations of horizontal equivalence. HEP is widely applied in legislation translation because it minimizes the likelihood of producing a text easily opening up to false interpretation by readers merely based on different locations of correspondent materials in parallel texts. This approach is particularly desirable among bilingual drafters (Lai & Li, 2012), since the texts produced in such a manner are widely welcomed by judges, lawyers, linguists, and lay people for the ready comprehensibility that the almost symmetrical syntactic structure offers. However, complex linguistic situations between two languages often render HEP impossible. Where situations like this happen, vertical equivalence approach may serve to compensate the deficiency resultant from applying HEP alone. Contrary to HEP, VEP allows necessary structural variances between source and target texts so long as the sacrifice on horizontal equivalence of parallel texts enables translators to produce

57 translations with equivalent meanings. Revell voiced his opinion on the relations between VEP and the object of co-drafting policy, which says, the object of co-drafting policy should be such that when read as a whole, the parallel texts should express the same thing (Revell, 1998). His understanding on VEP means the admissibility of a wide range of linguistic variances in the target text as long as such variances contribute to the elimination of linguistic pairs with unequivocal meanings. Syntactic and grammatical variances, lexical expansions and/or deletions (Cao, 2008, pp. 30-44), footnotes and/or glosses, and (rarely) textual changes are common tools to help to achieve the effect of vertical equivalence. As a solid theoretical back-up for VEP, the receiver-oriented theory proposed by Šarĉević offers a thorough explanation on the rationale for the validity of this approach. In one of her books, Šarĉević delineated the receiver-oriented translation theory, in which, for the first time, she offered a bold proposal that translators may sacrifice syntactic and stylistic unity of source texts and target texts in exchange for more effective communications in target readers (1997). In addition, this target text-oriented theory has gradually direct translators away from the stereotype that literal translation, i.e., word-for- word translation, is the only legitimate method of produce legal translations, and that any syntactic and stylistic deviance from source texts should be held as inadmissible. A case to show how HEP sometimes has to yield to VEP could be seen from the following example. Take the word unit in the translated Article 30 of the Criminal Law of the People‟s Republic of China6 for example. The Chinese expression danwei, which refers broadly to any institution, organization or companies where a person is affiliated to and works in China, could also refer to a unit of measurement7. In Article 30, the phrase danwei, which intends to mean “any institution, organization, etc., where people regularly go to work to”, was literally reproduced as unit, bearing none of the connotations with a workplace. Without further regard to the distinction to danwei’s two important meanings and simply by choosing a word that is only equivalent to the Chinese word in form (horizontally), the translation is ineffective by nature. The validity of this combined approach, i.e., the combination of HEP and VEP, could be seen from what Hong Kong and Japan have done to bring to light their legislations to people from different language backgrounds. Hong Kong, as a bilingual

6 The translation used as analysis sample is taken from the work done by the Standing Committee of the National People‟s Congress of P. R. China. The English translation is available at . The corresponding Chinese legislation is available at . 7 For the detailed definition of danwei in Chinese, please see .

58 jurisdiction, had once experienced similar failures when trying to convert common law terms into Chinese counterparts simply based on a word-for-word approach at an earlier stage8. Lai and Li, Senior Governmental Counsels of the Law Drafting Division in Hong Kong who have been working directing with the bilingual drafting staff, once stated that “the traditional word-for-word translation approach is not the best way to communicate the effects of legislation in Chinese” (2012: 28). Since the early 1990s, bilingual drafters began to realize that for the sake of textual comprehensibility and grammatical correctness, they might occasionally have to present Chinese provisions slightly differently from its counterpart English texts, provided there was no substantial change to the original meanings. They thus advocate a more liberal approach, i.e., “to adapt Chinese legislative texts in accordance with the grammatical and stylistic considerations of the Chinese language” (2012: 29). The move signifies a „switch of mind‟ in the drafters from strict adherence to HEP to an integrated approach of combing the two principles together. While achieving same legal effects are held sacred in bilingual legislation (Zhao, 2000), it is not expressly described by monolingual jurisdiction where legislation translation, rather than bilingual drafting, prevails the entire time. Nevertheless, translators in these jurisdictions still hold the same one goal, i.e., faithfully transmitting the truthful legislative intentions to target readers and avoiding as much false or incomplete information transmission as possible. This idea was reinforced by the statement made by Carol Lawson, who in his article declares that, among all other goals, the possibility of opening up a channel for global users to supply comments and suggestions on matters such as possible amendments and new legislation the same way as English law is also held as a dream to come true along with the advancement of Japan‟s law translation (2007). Japan goes at the forefront of legislation translation in Asia, and its efforts are being marked as illuminative to law translation practices in monolingual jurisdictions in several ways. What had been presented to legislation translators in Japan is quite typical in that not only had it to face vast linguistic differences between Japanese and English languages, but also the ways to tackle intrinsic linguistic differences arising from substantially different legal systems and languages. Japan responded to the economic drives 9 for a more transparent legal

8 See Allen K.P. Lai and Angie S.L. Li (2012) where it says that the Chinese texts of legislation published at the early years of the bilingual legislation were basically translated texts and that bilingual drafters were required to adhere to the style and format of the English texts in a “word-for-word” manner in order to produce a “mirror-image” of the English texts in Chinese. 9 See V.Tayler Britt, …John (Jody), Chaffee (2008). The economic drive back in the late twentieth century was witnessed by the increase of foreign investment in Japan in 1997, an integration of Chinese and

59 communications in the late 1990s with parallel efforts from governmental and local levels to bring „law transparency‟ to the public. While the Standard Bilingual Dictionary completed by bilingual law experts in 200510, a product of governmental efforts, had greatly added to the comprehensibility of legislation translations produced by following HEP (Lawson, 2007), the alternative approach was not being precluded as well, i.e., the VEP, whenever by adopting the translation of terminologies collected in the Dictionary alone could not serve for the due clarification purpose. This may be further explained in one of the articles by Valderrama López, where the author asserts that particular attentions should be paid to cultural factors, and that “words and its meanings can mutate, or will be adapted through the translation”, admitting the unavoidability of making proper adjustments to linguistic structures of source texts where situation necessitates (2006: 130). However, it is worth noting that the advocacy on VEP does not mean to suppress the adherence of HEP (Revell, 1998). Vertical equivalence functions whenever the employment of HEP runs the risk of endangering faithful reproduction of original meanings. But one has to be aware that excessive use of VEP not only reduces the readability of target texts (Lai & Li, 2012), but also opens up to the possibility of misinterpretations (2012). Similarly, whether parallel texts of a single instrument should be aligned on the textual appearance of Chinese texts closely to that of the English versions has undergone heated discussions among bilingual drafters in Hong Kong. At last, experts have broadly agreed upon a general adoption of HEP, leaving little room for the adoption of vertical equivalence approach unless the situation compels so. According to the statements from one of the LC papers submitted by the Department of Justice to the Legislation Commission of Hong Kong, statistically speaking, stylistic and syntactic differences can only be found in 1 to 2 percent of law provisions (Department of Justice of Hong Kong, 2001).

5. Types of misrepresentations in China’s legislation translation

As above discussed, a legislation translator has to, in addition to trying to preserve original structures of source texts, make sure that the translation produces faithful and

Japanese economies, and an increasingly prominent role Japan has been playing in Asia-Pacific Regions as a technical assistance provider. 10 Another contribution made through governmental efforts is the completion of Japanese Law Translation Database System (available at under the “Transparency of Japanese Law Project” initiated in 2004, which marks the highlight of Japan‟s law translation. See C. Lawson and S. Thornley (2002) for details.

60 complete information to readers, and thus, reconciliations between the HEP and the VEP is required whenever necessary. Such reconciliation, taken into account of complex situations in China, means that in order to be able to efficiently produce linguistically unambiguous texts to readers, translators have to take necessary steps to adjust stylistic and syntactic structures of Chinese legislative language, and to rearrange English language units in such way that the restructured English sentences conform to grammatical and syntactic features of English legal language so long as the truthful reproduction of legislative intentions of Chinese legislative texts is retained11. The fact is, as a result of wide adoption of HEP, misrepresentations in China‟s legislation translation are prevalent. This is partly resulting from the fear among legislation translators that the change in the sentence structure would lead to comprehension difficulties, and the fact that some under-qualified translators are simply incapable of securing denotatively equivalent English expressions to replace the Chinese counterparts. Typical misrepresentations can be classified into the following four types. Examples taken from the translated Criminal Law of the People‟s Republic of China, completed by the Standing Committee of the National People‟s Congress will be used to illustrate each type.

5.1 Misrepresentation of legal terminology

Unequivocal representation in legal terminology takes up the single largest portion of all types of misrepresentations identified in China‟s legislative translation. Such misrepresentation is primarily caused by terminological ambiguities arising from gaps between two legal systems. According to Šarcevic (New Approach to Legal Translation, 1997), each national law represents an independent legal system with its own set of terminological apparatus, underlying conceptual structures, rules of terminology classification, sources of law, and socio-economic customs. China has a long legislative history that dates back to late feudal times when Qing Dynasty compiled its first statutory code, Ta Tsing Leu Lee12 (Staunton, 1810). It has since then gone through a series of evolutionary stages, during which it took in elements of civil law systems from Japan and Germany, and later on socialist legal system from the former Soviet Union (Li G. , 1994). Together with the long-rooted custom laws, it presents the world with a unique legal system that distinguishes itself from the rest of the world. The uniqueness of China‟s

11 See Y. Zhao (2000), where the author emphasizes the importance of English translation conforming to English legal language and Chinese translations to Chinese legal language. 12 The online Chinese version is available at .

61 legal system, reflected upon its terminological apparatus, is featured by the diversity of legal terms and the unavailability of some counterparts in other languages, such as the Chinese term laodong gaizao (a criminal law term which means to compel imprisoned criminals to do labor work with an intention of cultivating their guilty minds) and xingzheng juliu (meaning administrative imprisonment for the purpose of punishing those who have violated administrative law orders). As a result, the situation posed serious problems to legislation translators. Furthermore, the seriousness of the problem is further burdened with the fact that English language and Chinese language fall in two separate language families, and therefore they differ substantially in syntactical, lexical, and phonetic features. And because of this, the Chinese-English legal translation is described by de Groot as the most difficult pair of legal translation among the four types of legal translations identified in accordance with the varied degrees of translational difficulties, i.e., translating from a language with both substantially different language families and legal systems (1992). Examples of terminological misrepresentations may be seen from the translation of intentional homicide and trial in Article 17 and Article 49 of the Criminal Law of the People‟s Republic of China. Intentional homicide, translated from the Chinese legal term Guyi Sharen in Article 17 (meaning killing people out of one‟s own will), confuses readers in common law jurisdictions where intentional homicide falls within the sub- categories of term homicide. The translation of trial in Article 49 was a literal reproduction from the Chinese expression shenpan (which in a strict sense refers to the trying process, but is also broadly used to refer to an entire prosecution process in China, integrating a few other related processes, say investigation, arraignment, and pretrial, etc.). Intending the latter definition, the translator‟s choice of the word trial to represent the Chinese expression shenpan limits the connotation of shenpan solely to the „trying process‟, excluding the other equally important phases intended to be incorporated into the meaning. The misinterpretation easily led readers to believe that only when a female defendant is found guilty during the trial stage (not the other stages) she may be exempted from death sentence. And this, obviously, was not the original intention of the legislator13. Unlike common law jurisdictions where definitions to legal terms are readily available through a separate section listed at the initial section of a legislation or regulation, legislation in China does not contain such separate sections. Even though it

13 According to my telephone communication with Professor Li Changlin, a law professor from Southwest University of Political Science and Law in China, he confirms that in China, even if an accused female is found pregnant during the investigating stage, no matter the accused woman‟s pregnancy lasts till the official trial stage or not, she is entitled to an exempt from death penalty.

62 does occasional contain definitions to certain key terms in the statute, the majority legal terminology still does not bear sufficient textual clarifications. Textually speaking, most legislative translations in China are products made by adhering to the HEP, but if examining deep inside, one is easy to draw the conclusion that, without thorough understanding of the terms contained in clauses, such strict textual alignment style destroys linguistic unity of both source and target texts, alienating the translated text from its original meaning.

5.2 Basic language mistakes in (legal) English expressions

Miscommunications of this kind occur when translators fail to generate a text lexically or grammatically correct in the sense of target readers. These mistakes do not necessarily have to be law knowledge-related, since they may also be some fundamental language mistakes resulting from translators‟ poor knowledge of the target language rules. Such mistakes are quite occasionally found in the Laws and Regulations Database and other translation efforts undertaken by some private groups. The causes to the problem, I assume, must, to a large extent, have to do with the unavailability of qualified bilingual law experts as are critical to ensure sound legislation translations (Goddard, 2009) and the absence of quality management mechanism at governmental level. An example to show basic language mistakes in these translations could be seen in the translation of Article 59 in the Criminal Law of China. The translation at issue is about the Chinese phrase baoliu bixude shenghuo feiyong, which means to preserve necessary life expenses from being taken away from the total assets the convicted owns (to leave those who were under the convicted‟s regular financial support fair living expenses). In this sentence, the translator may have tried to break horizontal equivalence stigma by converting the active voice structure of the Chinese sentence into the passive voice in English, a gesture to show due consideration to common English sentence structure (Guo, 2007; Law Drafting Division, 1998), but the expression “the amount necessary… shall be taken out” is confusing as it leads people to wonder where the money actually goes once being taken out from the total property. This is because the English phrase to be taken out merely denotes an action of pulling something out of a bigger portion of something else, and thus without any connotation to further actions. Since being taken out is substantially differently from (the property) to be subject to deduction (for some fixed purposes), the said translation constitutes a basic language mistake and is therefore meaningless, though linguistic structures of both texts may seem textually (horizontally) parallel to each other.

63 Another case illustrates incorrect employment of legal terminologies: the translation of circumstances of the crime from the Chinese expression fanzui qingjie in Article 52, which means the gravity of crimes (to be adjudged from the seriousness of offensive actions)14. The word circumstance, defined as “conditions or fact connected with an event or action” in Oxford Advanced Learner‟s English-Chinese Dictionary (Hornby & Li, 1997: 628), entails a set of inter-connected elements constituting basic conditions of an event. Though the definition to the word circumstance partly explains the Chinese phrase qingjie (literally meaning detailed facts or plots of a crime), the substitution of the Chinese expression qingjie with the English word circumstance misses the important implications intended by the legislator: the emphasis on varied degrees of the gravity of crimes, critical to make fair assessment on monetary penalty to be imposed on the convicted15. The literal translation circumstances of the crime, therefore, cannot fairly represent the Chinese expression of fanzui qingjie. I thus recommend gravity of the crime instead.

5.3 Employment of colloquial expressions

Legal language has historically been held as elite language, remaining exclusively to selected groups of people, like law professionals and law study researchers in the academia (Song, 2006). The worldwide plain language movements16 contributed to the production of legislative texts readily accessible to the general public. While the movement has made substantial progresses in transforming technical and windy legal texts into simpler and easily accessible ones, some of the most fundamental features of legal language are nevertheless retained, among which is the formality of linguistic style. Correspondingly, there are multiple techniques a translator may resort to in order to retain formality in target texts, for example, the tendency to use nominalization, technical terms, and inadmissibility of informal and colloquial expressions. While colloquial expressions serve usefully in reducing technicality of legal language, it is nevertheless agreed that too frequent employment of such expressions risk the loss of solemnity and precision of legal

15 For reference, Article 52 in Chinese reads: “第五十二条 判处罚金，应当根据犯罪情节决定罚金数额. Its English translation reads: “Article 52 The amount of any fine imposed shall be determined according to the circumstances of the crime.” 16 See M. Liao (2006). Plain Language Movement is a worldwide movement occurred in the late twentieth century. The purpose was to sweep off unnecessarily complex language expression from the academia, government, juridicature, and business areas for the benefit of the common public. The law academia worldwide responded to this movement by promoting plain legal language in replacement for complex, obscure legal expressions with shorter sentences, simple logic structures, and avoidance of jargons and unfamiliar words, etc.

64 texts and cause credibility crisis among target readers. Being identified as one of the major problems in legislation translation in China, the overflowing with colloquial expressions affects the quality of translations in more than one way. The employment of mental patient (in Article 18), woman (in Articles 236, 237, 240, and 241 and several other places of the Law), and girl (in Article 236) are a few examples to illustrate how colloquial expressions were employed inappropriately in legislation translation when formal and technical expressions may have served a better purpose. The phrase mental patient is translated from the Chinese expression jingshen bingren (people with mental problems), woman from funv (adult females), and girl from younv (minor females). Even though such translations are able to explain the fundamental meanings of their Chinese counterpart in a technical sense, they are colloquial and inappropriate in a formal setting like this. A better option in substitution for these colloquial expressions might be psychotic, adult female17 and female minor respectively. One of the clear risks of too many colloquial expressions in legal texts is that the intrinsic feature of lexical vagueness of colloquial expressions often adds to the possibility of endangering faithful representations of source texts. Take the word girl in this case for example. In addition to its ordinary meaning as an underage female which is the intention of the translator in this case, the word has over the years extended far beyond it, like the meaning an adult female (married or unmarried), just for courtesy purpose. Therefore, obviously, the extended meaning of the word girl run clear contrary to what the translator intended it to be.

5.4 Chinese language-oriented English language structure

Another important misrepresentation of source texts is caused by „bad English‟: English sentences produced by rigidly adhering to the sentence structures of source texts, and by literally translating each single word in the source text into corresponding English phrases. While this problem plagued the earlier stage of Hong Kong‟s bilingual drafting process, it also caused headache to China‟s legislation translation (Zhao, 2000). According to Zhao, one important premise that guarantees fair legislation translation is the prerequisite that “Chinese texts conform to the grammatical rules of the Chinese

17 For the differences between the use of “woman” and female, please see definition to “woman” at dictionary.com, available at http://dictionary.reference.com/browse/woman and the explanations made by Mignon Fogarty, available at . Basically, according to Fogarty, the word “female” is prone to be used under scientific (technical) contexts. The rationale works the same with the words “girl” and “mental patient”.

65 language, and English texts conform to the grammatical rules of the English language” (2000:3). This, put under China‟s concrete situation, means that translation process should be rendered in such a way that English sentences translated from Chinese texts should follow the linguistic rules of English legal language (not the Chinese legal language). To this end, translators sometimes have to sacrifice the unity of textual appearance of both languages, a break to the HEP. Chinese legal language, largely following a civil law tradition, has acquired some civil law features, such as terse wording style and, shorter sentences (Yen, 2010; Cao, 2008), while English legal language, loaded with dense common law culture, is featured by lengthy sentences, impersonal structure, and frequent use of word strings (Kocbek, 2008; 2010). In addition, the two languages also differ in, among all other things, grammatical rules, nominalization, orders of conditional clauses, and frequency of employing active/passive voice in the sentence. Because of the contrasted syntactic differences (Hu & Wang, 2002) between Chinese and English legal languages, the retaining of strict horizontal equivalence structure unavoidably impairs the integrity of English legal language, making English sentences unfairly affected by source texts. Take Article 238 of the Criminal Law for example. Structurally speaking, the English translation is exactly the kind of „mirror image‟ of the Chinese text. The English structure in the translation “… shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights” led by the verb sentence is typical a „mirror image‟ of its Chinese counterpart, and it is linguistically defective in that the way the translator aligns the text, i.e., the literal reproduction of Chinese sentence structure, render the English text simply incomprehensible to native English readers. This is because the English verb sentence, when used to refer to a penalty imposed on the convicted, refers to mostly commonly as an order issued by a court to the convicted for a period of jail or prison time18 (not criminal detention, public surveillance or deprivation of political rights).

6. Conclusion

It is highly unlikely that problems identified in legislation translation in China could be resolved overnight, considering the complexity of the problems and the relevant cultural, economical and institutional factors. Seen from Hong Kong experience, which benefits

18 See further explanations at the Free Dictionary by Farlex, available at . Though technically speaking, the word “sentence” also applies to penalties other than jailing or imprisonment, such usage nevertheless remains unpopular. People in common law jurisdiction today tend to apply it only when the order issued to the convicted is about jailing or imprisonment.

66 not only from its long history of being a common law jurisdiction, but also from its bilingual legislation system backed up by strong policy support in finance, human resources, quality control and the establishment of developed interpretation rules, there are ample experience that China may draw from, among which is the adoption of the integrated translation approach, i.e., instead of doggedly adhering to HEP alone, allows the employment of VEP wherever the situation compels so. The country that may shed some illuminations on China‟s legislation translation practice is Japan. It was successful in bringing its laws transparent to global viewers because it has realized the importance of identifying clear objects of law translation in the first place, i.e., to let people from other world know about Japan‟s law system, and to encourage people from the globe to contribute to its legislation. Despite the fact that legislation translation in China occupies a status lower than Chinese legislation, but unless we treat it on equal terms with Chinese legislation during the production of English texts, it will never be granted or treated as if it has sufficient credibility that readers may rely on.

ACKNOWLEDGEMENTS

This research is funded by both China University of Political Science and Law: the Linguistic Study of Contract Law and its Application in Legal English Teaching and the Philosophical and Social Sciences Research Grant of Beijing, A Comparative Study of Chinese-English Contracts: A Corpus-based View (12WYC043). This paper is financially supported by Collaborative Innovation Centre for Global Governance and the Rule of Law of China University of Political Science and Law.

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69 The Progress of Legal Semiotics in China

HONGQIN ZHANG

China University of Political Science and Law

BIODATA Hongqin Zhang, Ph.D. in Cognitive Linguistics, works as an associate professor at School of Foreign Languages in China University of Political Science and Law. Her principal research interests include lexical construal, legal discourses analysis, and academic English writing. Her major publications have been focused on topics in cognitive linguistics and language instruction. She can be reached at [email protected].

ABSTARCT The term legal semiotics first appeared in China in 1991, much later than the west. Scholars reviewed the legal theories of western semiotics, introducing to China the basic concepts of legal semiotics, schools, and feature analysis. Shortly after the linguistic turns of jurisprudence, Chinese scholars have achieved remarkable progresses in semiotic studies in theoretical areas like legislation, judicial fields, and applicable areas chiefly in semiotics of translation and in terminology study both of modern law like fazhi and ancient law like“供”and“证”. The remaining problems are 1) Repetitions There are unnecessary replication in semiotic studies, due to heavy attachment to theory rather than to practice. 2) Unbalanced The research studies of legal semiotics are from a few experts like Le Cheng, Li Xiangkun, Xie Hui, Zhao Yiheng, Wang Mingyu, Guo Hong and etc. And the studies are confined to monolingual English not multilinguals. So China‟s legal semiotic studies are expected to strengthen diversification, and interdisciplines in semiotics and other disciplines; to a further integration of globalization with localization in Chinese tradition; to indigenous researches concerning local context like ethic minorities in Chinese culture. This paper can be regarded as a dialogue of legal semiotic fields between China and the West, and thus can facilitate in some sense the interchange between legal researchers at home or abroad.

KEYWORDS legal semiotics, linguistic semiotics, legal science, interdisciplinary, localization

1. Legal semiotics: Its origin

Legal semiotics is influenced and shaped by the linguistic turn in western philosophy in the 20th century, which makes an overall transition from the cognitive paradigm and methodology of linguistics to legal fields. Under such a linguistic background began the

70 study of law and language. Thus comes the term the linguistic turn of law. The scale theory of legal semiotics emerged in the 70s-80s, with the chief founders of G. Kalinowski, A.J.Greimas, E.Landowski, A.J.Arnaud and etc. The most prominent representatives are English B.S. Jackson and American R. Kevelson, following respectively the European structuralist semiotics and Peircean logical semiotics. The origin of legal semiotics as a science can be traced back to three starting journals—Semiotica in 1969, Semiotic Society of America (SSA) in 1975, and The International Journal for the Semiotics of Law (IJSL) in 1987. Semiotica, the Journal of the International Association for Semiotic Studies, was founded in 1969 and appears in five volumes of four issues per year, in two languages (English and French), and occasionally in German. SSA, founded in 1975, is an interdisciplinary professional association serving scholars from many disciplines with common interests in semiotics, the study of signs and sign-systems. Its official journal is The American Journal of Semiotics. The society also publishes the proceedings of its annual conferences. Memberships in the society and publication of the journal are managed by the Philosophy Documentation Center. (from Wikipedia, the free encyclopedia) In the latter half of the 1920th century, with the development of the study on the philosophy successively appear various academic disciplines such as a semantic analysis of law, the new rhetoric of law, legal hermeneutics, and structuralist semiotics of law. These groups of interdisciplinary research paradigms reconstruct the traditional legal language view in the theory of law, and bring a trend in today's academic circles and a revolutionary change to the development of modern law.

2. The Appearance of Legal Semiotics in China

Legal semiotics, in my literature, first appeared in 1991 (Lv Shilun & Xu Aiguo), much later than the west. Lv Shilun & Xu Aiguo reviewed the legal theories of western semiotics, introducing the basic concepts of legal semiotics, schools, and feature analysis. The theoretical aim of legal semiotics is, from informational communication to the study of legal semiotic systems, legal information creators and the behavior of the legal semiotic implementers. Its focus is on the legal semiotic system, the features of legal information, the whole structure of law (legal texts, discourses and argumentation) and the behavior of legal semiotic of law enforcers and legal contriver. They explained secondly the two schools of thought: Peircean legal semiotics and Greimasian legal semiotics.

2.1 Lv Shilun & Xu Aiguo’s review of Peircean legal semiotics

Peirce perceives a sign as containing three distinct parts, known as the triadic sign model. “Peirce had enormous influence on continental legal theory at the turn of century.” (Kevelson, 1988, p.6) “Law is seen as a means to exemplify, and sometimes to refine, the Peircean concepts themselves.” The outstanding practitioner of Peircean theory is Robert Kevelson. “Peirce forms the focus for the entire work of Robert Kevelson.” (Jackson, 2010, p.4) “Amongst the topics considered by Kevelson from a Peircean standpoint are: legal decisions, rules of law and rules of conduct, limits of authority in law, contract, law and morality, economic justice, hermeneutics of law, American realism, the constitution

71 as interpretant sign, property, conflict of laws, and inquiry and discovery procedures”. (Jackson, 2010, p.16) Kevelson regards law as „a prototype of intersubjective social exchange of value as a whole‟ (Kevelson, 1988, p.4). She develops Peircean legal semiotics with focuses on the origin, evolution and changes of semiotics, stating the relationship between legal systems and their referent, social institutions, the argumentative function, the application, the structures of legal reasoning—syllogistic and dialogistic, the relations between logic, ethics and value (aesthetics), and etc. (Kevelson, 1988, pp. 11-12) She demonstrates various applications in the fields of legal profession. Based on the triadic sign model of Peircean legal semiotics (Figure 1), Lv Shilun & Xu Aiguo (1991) analyses the components of legal communication structure. contact legislators, judges, encoding sign legislators, judges, lawyers as sender lawyers as receivers media context sender

Senders Figure 1 Peircean legal semiotic model in communication structure

The structure senders and receivers are legislators, judges, and lawyers, the code includes the legal language technical terms and structures, the media contain the natural language symbols, the courts and the legislature, and context, a broad concept, comprises history, customs and geography. This organic combination makes up complete legal communication structure.

2.2 Xu Aiguo’s review of Greimasian legal semiotics

The analysis of legal language is a unique way of the Greimasian theory, according to Lv Shilun & Xu Aiguo (1991) and Xu Aiguo (1998). Semiotics as a method of analysis is applied to all aspects of the law, and Greimas once applied semiotic approach to the analysis of the law of French company in 1996. Jackson, inherits from Gremials, applies semiotics to various legal fields, and develops further to a systematic theory of legal semiotics in the 1980s. The outstanding practitioner of Peircean theory is Robert Kevelson. His books are mainly Semiotics and Legal Theory (1985), The Law, Fact, and Coherent Narrative (1988), Making Sense in Law (1995) and Making Sense in Jurisprudence (1996). Xu Aiguo (1998) summarizes three features of European structurist legal semiotics, 1) law as a kind of symbol, including legal concepts, principles, theories, the specific provisions, legal reasoning, and the realization of legal process, 2) legal symbols having their own structure, surface structure and deep structure, 3) the generation ways of legal meanings, i.e. the structure, function and expression. Xu Aiguo (1998) analyzed the legal case X murdered Y from semiotic perspective as in Figure 2. X can be regarded as the subject of legal act (the sender), Y is the object in the case (the receiver), the relation between X and Y is established via murder (contact and encoding), and the murdering of X is carried out under special contexts (context and information). Secondly, it is necessary to interpret the background and motive of the murdering, the capacity of the party and the remembering of the witness. The court context, for example, includes the activities of the party members outside the court, the success of their proof, the

72 trustworthiness of their memory. X murdering Y murderer X sign decedent as sender Narrative structure murder as contact Y as receiver motives, background Sende Figure 2 Jackson‟s legalrs semiotic model in X MURDER Y Xu Aiguo (1998) introduces further related organizations. The international Association for the Semiotics of law (IASL) was founded in 1987, with more than 20 countries members in the world now. In Europe, Bernard Jackson established the International Journal for the Semiotics of Law (IJSL) in 1987 with the publishing house Deborah Charles Publication. IJSL includes semiotic analyses including visual semiotics, legal theory in general, hermeneutics, the relation between psychoanalysis and language, the relation between law and literature, as well as the relation between law and aesthetics. A second organization is The International Roundtable for the Semiotics of Law (IRSL) held its first annual meeting in 2002, driven by remarkable people, both interested in law and semiotics. Bernard Jackson was the key figure in the Greimasian oriented International Association for the Semiotics of Law (IASL), which convened most of its meetings in Europe. The three journals provide an occasion for many established scholars in the field to start their careers in this field of research. In addition to theoretical review, the researchers in our country have outstanding contributions to legal semiotics in the four fields: in theoretical discussion, in legislation, in judicial fields, and in application via translation.

3. The domestic theoretical discussions of legal semiotics

The semiotics monographs of Chinese scholars are equally satisfactory, reflecting again the forceful rising of semiotic research in China. (Wang, Mingyu, 2003, tr). The representatives are listed briefly as: Literary semiotics (Zhao Yiheng, 1990); An introduction to semiotic theory, Historical semiotics (Li Youzheng, 1996/2003); Beyond ontology (Ding Ersu, 1994); the Chinese character semiology (Huang Yaping, Meng Hua, 2001); Semiotics and media (2) (Zhao Yiheng, 2011); Semiotics research, linguistic semiotics (2002/2005); An introduction to cultural semiotics (Gong Pengcheng, 2005); Semiotics analysis of trademarks (Peng Xuelong, 2007a); Semiotics of communication (Yu Zhihong, 2007); The outline of modern western semiology (Guo Hong, 2008); Humanities and semiotics: the road to the human science (Li Youzheng, 2011); Interactions, and Illuminations: Traversing Chinese and Weston Theories of the Sigh (Ding Ersu, 2010); Forensic linguistics(Du Jingbang, 2004); Legal discourse analysis: A course book (Du Jingbang, 2013); A study on courtroom questions, responses and their interaction: a linguistic perspective (Liao Meizhen, 2003); Diversity and tolerance in socio-legal contexts—explorations in the Semiotics of law, Anne Wagner, VK Bhatia (eds) (2009) (Zhang Falian, translated 2012) to list just a few. This means that legal semiotics is constantly radiating its own unique charms as an emerging interdisciplinary.

73 3.1 The jurisprudence’s turns to language

The jurisprudence‟s turns to language are found in three patterns: the linguistic turn of law, pragmatic turn of law, and discursive turn of law.

3.1.1 The linguistic turn

Concerning the linguistic turn, Liao Meizhen published two essays in 2006 and 2007, interpreting the linguistic turn in the field of legal science. He discussed in 2006 in his journal “On the linguistic turn of law”, stressing that law is language, and jurisprudence is linguistics. He emphasizes the linguistic foundation of legal research, the close relation of law and linguistics, and the ways of linguistic methodology in the application of legal study. So engagement in legal research requires a good command of language. The case of Lawrence M. Solan, one of the leaders in International legal language research, is a good illustration; his mastery of linguistics provides a good background for his achievement in legal study. The case of Solan shows the importance of linguistic background in legal research. Generally speaking, The Language of Judges by Solan is a great success in its analysis and criticism of the trial language of the judge, especially the explanatory language applicable to law. In 2007, Liao stated briefly in “linguistics and law” three questions concerning this turn, 1) the basis of linguistic turn of law: the close relation between language and law, 2) the enlightenments of the philosophical turn, 3) new tasks facing the language of law in today's China. He highlights in “Linguistics and law” the direction and way of linguistic turn in legal science that jurisprudence should move to language research, to empirical study, to practice, and to the details. Legal turn brings us at least three major tasks, the descriptive research, the interpretive research, and the normative research. In the study of legal language, we advocate that the empirical study is prior to the speculation. Liao hopes that the methods of linguistic study can be applied to legal study such as the empirical, field research, and application.

Dong Xiaobo (2007) publishes his essay “understanding linguistic turn of Western jurisprudence”, stating the close relationship between language and law. The research paradigm of interdisciplines and multiple dimensions reconstructs the legal language view in the traditional legal theories and has revolutionary changes in the development of modern law, reflecting the trend in today’s academic circles, worthy the assimilation of legal research in China.

3.1.2 The pragmatic turn

Besides the linguistic turn researches of Liao Meizhen (2006, 2007) and Dong Xiaobo (2007), Zhang Binfeng (2013) and Zhang Binfeng & Chen Shaosong (2014) discuss the pragmatic turn of the legal methodology research. They analyze the necessity and applicability of the pragmatic approach to legal research. This, in their anticipation, makes it possible to change from the traditional subject-object dichotomy to the interaction of intersubjectivity in legal methodology, from instrumental rationality to practical rationality, from the single subject-oriented practical reason to multi-agent communication, from static logic analysis to dynamic analysis of the context, from

74 language form and semantic analysis of legal speech to pragmatic construction and practice via speech and the context. The pragmatic turn is associated with diversity in legal and social contexts introduced by Zhang Falian et al. (2012) via the translation Diversity and Tolerance in Socio-legal Contexts—Explorations in the Semiotics of Law edited by Anne Wagner, V.J. Bhatia, 2009. The book is a diverse collection of twelve papers dealing with diversity and tolerance, interpreted in a very broad sense, and in a number of social and socio-legal contexts. The global context is illustrated in 2005 as well in the collection Contemporary issues of the semiotics of law, cultural and symbolic analyses of law in a global context by Anne Wagner, T. Summerfield and F. S. B. Vanegas.

3.1.3 The discursive turn

The discursive turn is reviewed by Peng Xuxian & Li Xiaokun in 2009, who made an introduction to and comment on Advances in Discourse Studies by V.J. Bhatia, J. Flowerdew & R. Jones. Discourse analysis covers seven approaches, conversational analysis, ethnographic-based discourse analysis, multimodal discourse analysis, genre analysis (GA), critical discourse analysis (CDA), and mediated discourse analysis. Semiotic modes and texts/contexts are angles for seven perspectives for the multidimensional, interdisciplinary and multimodal discourse analysis. Discourse analysis is. The book directs new directions for interdisciplines and integration in discourse analysis.

3.2 The theoretical discussion of legal semiotics

Xie Hui (2002) discusses the significance of the ontology of legal semiotics in his essay “law as semiotics”. He explains the three basic requirements in the study of legal semiotics: the needs of the subject, social and cultural background, and natural geographical background as well. This approach puts stress on interactions of humans, and rational practice. Guo Wei & Zou Xiehua (2012) puts forth that law corresponds naturally to humanities and social science which has epistemology and methodology as a focus, and that semiotics and law have both external and internal correspondences. The method of semiotics is likely to create a new dimension and vision of jurisprudence. Niu Yubing (2013) stresses in his essay “the review and foresight on the research of legal language” the phenomenon research of legal symbolization. This common but ignorable phenomenon is of two dimensions, the symbol of law and the law of symbol. Such symbolization is of significance to legal expressions and operations, making legal operations more concise and efficient. However, symbolized law is limited in fully describing and standardizing the real world due to various restrictions, and thus the sign of law is likely to be relatively limited. Le Cheng (2006, 2008, 2010) publishes a series of essays concerning the legal terms in legal discourses, genre (2008, 2010), linguistic modality (2012), and Chinese terminology in legal texts in special. In 2006, Le Cheng stated the essences of legal terminology from the angle of semiotics, and its space and time attributes. In Chen‟s view legal terms are considered to be the product of the specific economic conditions, and the same legal terminology can have different meanings in different historical stages.

75 Le Cheng & King Kui Sin published in 2008 an essay “terminological equivalence in legal translation: semiotic approach equivalence in legal translation”. By adapting some principal propositions in semiotics, the paper argues that total equivalence can be achieved via meta-lingual adjustment, for a sign is not born with meaning but invested with reference by a sign user. The paper also provides some linguistic strategies for realizing terminological equivalence in legal translation, such as the use of a semantic reference scheme, componential analysis, and the principle of productivity and economy. Shifeng Ni, Le Cheng and King Kui Sin (2010) have another essay “terminology evolution and legal development—a case study of Chinese legal terminology”. The present study explores the interrelationship between the evolution of legal terminology and legal development through a diachronic examination of 100 Chinese legal terms. Four cases out of one hundred Chinese legal terms are analyzed in detail in the present study, Fazhi („rule of law‟), Jiben quanli (engl., fundamental rights), Hetong (engl., contract), Fanzui xianyiren (engli.,suspect)…The brief introduction to the evolution of fazhi demonstrates the process of localization of the legal concept rule of law. The evolution from fazhi as legal system to fazhi as rule of law lays the basis for further legal reform in China and sets out the general direction for Chinese legal modernization. In 2011 Cheng Le takes a socio-semiotic interpretation of linguistic modality in legal settings, using the Chinese data of linguistic modality of eleven elements in Hong Kong‟s legislation from a semiotic perspective namely, XU, BIXU, YING, YINGDANG, BUDANG, WUXU, BUYI, YINGGAI, BUYINGGAI, BUYINGDANG, BUBI. In his conclusion, a socio-semiotic approach is a better understanding of modality in respect of its meaning and function in our language as a sign system, and a better way for unraveling the complexity of modality as exemplified in its usage in the legal domain.

4. Semiotic study in legislation

4.1 The Constitution of the People’s Republic of China

Le Cheng, Shifeng Ni, King Kui Sin and Winnie Cheng (2012) published an essay entitled “a sociosemiotic approach to fundamental rights in China” (CPRC). The paper investigates the stipulations on fundamental rights in the four versions (1954, 1975, 1978, and 1982) of and four Amendments (1988, 1993, 1999, and 2004) to CPRC from a sociosemiotic perspective. The analysis of the four versions of the Constitution and the successive Amendments demonstrates that most of the stipulations on the fundamental rights for the PRC citizens are available only in 1982 instead of the others. The 1982 Constitution made a breakthrough with the potentiality for the inclusion of human rights in principle into the 2004 Amendment. The introduction of the concepts such as ren (“person”) and renge (“personality”) renders the whole scenario different and promising. The subjects of the legislative provisions on the fundamental rights become tangible and explicit. Chinese people‟s voices in the negotiation of fundamental rights are heard and are playing a more and more important role. The active participation of Chinese people into the semiotic interpretation process makes the stipulations on fundamental rights meaningful and valid. This study also implies that the definition of a legal term is constrained by other sign systems and hence the importance of an understanding of terminological dynamicity.

76 4.2 Semiotics in the study of Trademark Law

Li Shilin (2012) makes an analysis of trademarks from the perspective of semiotics in his paper “semiotic evaluation of trademark property”. He mentions the three components of trademarks, the signifier—tangible signs, signified—the origin and reputation of goods and object—attached goods. The signifier of the trademark constitutes the brand essence, and thus it should be unique and different. He discusses three parts, the semiotic model of trademarks, expansion-dilution theory of real rights, jointly transference into a single transference for the purpose of making clear distinction of the trademark functions. He suggests that semiotics be applied to the protection theories of trademarks. Peng Xuelong (2007b) in his essay “five divisions of trademark from the perspective of law and semiotics” defines five categories of trademarks, fanciful marks, optional trademarks, suggestive trademarks, trademarks of descriptive words and of generic names. Trademark's distinctiveness among them is different but not so distinctive, with unclear boundary. As trademarks are in possession of legal terminology and of symbol attributes, he takes both law and semiotics as approaches to the trademark analysis. Peng concludes that the classification of trademarks is dependent upon specific conditions of usage such as the usage time of the commodity, commodities used, service consumed, consumers and etc. Peng Xuelong (2007a ) holds in his book The Semiotic Analysis of the Trademark Law that trademark law is a matter of law in the society of market economy, and a kind of symbolic sample as well. The semiotic analysis of foundation size is conducive to the understanding of trademark, trademark right and trademark infringement and to the concise operation of the operation mechanism of the trademark system. The book explains that trademark is a ternary composition of the users of the trademark, the attached objects of trademarks, and the trademark logo. It analyzes the relationship between trademark and business reputation, and holds trademark has a decisive role in the eyes of consumers. In the trademark layout, goodwill makes the key element of “signifier” and business reputation has the tangible assets of independent value. The book makes a new distinction of brand visibility as that of reference and of distinction and states the significance, feasibility, and applicability of the dichotomy of new significance, implementing the unity of the categorization both of significance and of trademark. The book makes a deep investigation to the basic theoretical issues of trademark concerning the trademark structure, trademark distinctiveness, trademark dilution and confusion. The author not only makes comments on the traditional theories but also puts forward valuable new perspectives. The first breakthrough is the new classification of trademarks. Of dilution and confusion, the two kinds of trademark infringement, dilution is considered as a basic category of the trademark law, which effectively responds to development situation of the trademark function. Another breakthrough is the establishment of trademark infringement as consumer mood problems. Finally, it delineates the boundaries of trademark infringement and trademark dilution, ensuring, by or to a certain extent, its own referential space of the category. This book, according to Tao Weiqun (2008), is an effective tool for the analysis of semiotics and hits the mark. In general, the book promotes the theoretical level of the trademark law in our country, and has obtained the good effectiveness of research. The semiotic analysis of the trademark law can be considered as a masterpiece in the theory of trademark law.

77 4.3 Semiotic discussion in Intellectual Property Law

Like legislation and trademark law, intellectual property law is also a kind of symbolic expression. Owing to the general characteristics of semiotics in the field of art and literature, semiotics provides us a new perspective for the analysis of substantive copyright works. Wang Taiping (2006) introduces a semiotic approach to trademark. As trademark is a kind of sign and semiology specializes in sign phenomenon, it is very significant to analyze trademark phenomenon via semiology. The paper deals with the concept of trademark, the course of the creating and evolving of the trademark, the functions of trademark, the evolution of the nature of the trademark, the substance of the trademark right and trademark infringement. Wang Kun (2008) introduces the semiotic features of the ontology of intellectual property in her paper. “The discovery of semiotic world and the construction of ontology of intellectual property rights” that intellectual property is a kind of symbolic property. The discovery of symbol world provides a new theoretical perspective for the study of the ontology of intellectual property and promotes people to their recognition concerning the two relations of knowledge and symbols, and of laws and the sign world. On the perspective of the relations between law and symbols, intellectual property is the limited disposition of law over the knowledge resources of the symbolic world. Intellectual property is a kind of property right in the symbolic world. Zhang Huaiyin & Zhou Zhongshang (2011) discuss the classification criteria of copyright works in their paper “the classification of copyright works—a semiotic perspective”. This division via semiotic method is from the target of the right to the object of the right and further to legal norms, finally up to the analysis of the nature of the copyrighted works itself. This semiotic classification is of vital significance in reality for the proper definition of the copyright works and for the analysis of copyright infringements. Yang Zhengbo (2004) discusses the application principles of semiology in trademark design. Pure visual sense in the sense of satisfaction and a unique thought connotation are two key accesses to the bridge between art creation and the symbols of audience in information receiving. Tan Yue (2009) explains the semiotic character of intellectual property, stressing the semiotic commonality in the object of intellectual property rights like inventions and trademarks.

5. Semiotic studies in judicial fields

5.1 Theoretical discussion of courtroom discourse

Du Jinbang (2010a) publishes his book on New Progress of Legal Language Research, with special issues on legal linguistics theory, legal discourse analysis, the application of legal language research, and legal language teaching. The books have obvious characteristics, a wide range of research, a rich content, and good quality with novel ideas. Du Jinbang (2010b) in his essay “the construction research of court dialogues and legal law” treats the processing of legal facts as one of the key trials. Legal facts are between objective facts and referees‟ facts, which are built up by the trial participants of

78 both parties. The construction of legal facts resorts mainly to language except nonverbal means. In court investigation and debates, the dialogue making of the two parties is a major means of presenting and processing of legal facts, which is the research point cut of legal fact construction from the perspective of language. With the help of corpus, this paper studies the process, characteristics and disciplines of the construction of trial legal fact. This analysis launches dialogues from three ways, focusing on research facts presentation via self-report analysis; exploring fact construction of the law via the analysis of interaction; stressing the fact cognizance via analyzing others‟ reports. This study shows that the trial parties manifest different attitude and processing methods in the process of construction of legal facts, and different characteristics in the processing discourse information. Ye Ning & Pang Jixian (2010) introduce the book of Coulthard & Johnson (2007) An Introduction to Forensic Linguistics: Language in Evidence concerned with the judicial process language. Coulthard focuses mainly on language as evidence, such as institutional legal process under questioning, the application of discourse analysis in the expert's report, and to reveal the linguistic evidence of the case details. Chapter 6, for example, lists a series of linguistic cases to show how legal linguists use linguistic knowledge to analyze lawsuits such as phonetic similarity, voice line-ups, lexico- grammarical ambiguity, syntax complexity, and pragmatical meaning. It also puts forward expert opinions as reference for lawyers and judges in adjudicating cases. In this book, the authors on the base of evidence center analyze lawsuits and interpret the relevant theory of linguistics, fully exhibiting the practical blending between the linguistic theory and the judicial system and practice. With rich professional knowledge and abundant judicial practice, the authors introduce and analyze the theory of linguistics systematically, and put forward profound insights for the practical application of the legal system as well. The book fully demonstrates the important roles of linguistic evidence in legal processes such as cases detection, and forensic cases.

5.2 Theoretical applications of courtroom discourses

Concerned with court hearing, the domestic focus is on legal documents such as the indictment, prosecution, judgment, and word agency. Wang Jie (1999) in her book Legal Language Research divides the court cross-examination into five categories, utilizing the words chain in contextual factors, exploratory questions of preliminary trial, directional questions in identifying suspects, the turn of nondirectional exploring questions to directional specific questions, and suggestive questions, and into four linguistic functions, persuasion, explanation, influence and inspirations. Liao Meizhen (2002) published the first treatise on the court discourse A Study on Courtroom Questions, Responses and their Interaction: A Linguistic Perspective. This book is devoted to a quantitative analysis of more than 900,000 words of 13 different but typical courtroom trials from courts in Beijing, Jiangsu, Sichuan and Chongqing and etc. in terms of turns and adjacency pairs as “question response pairs” and “non-question- response pairs” as well as distribution of response acts and their different forms among trial participants in the trial process. Liao‟s work is distinguished as four features, a quantitative analysis of court question and response rather than a mere description, a combined study of question and response, the association of question-response research

79 with answerers (why, what, how to ask and what, how to answer, and so on. That who asks and answers plays an important role in court trials.) and finally the association between strategies of question and response with its forms. Generally speaking, Liao‟s study reveals trial mode and the status quo after Chinese judicial reform, question forms and strategies of judges and lawyers, and response forms and strategies as well. He reveals the importance of question and response interactivities at the trial, gives enlightenment to Chinese legal linguistics research, and brings a new research perspective and a wider vision to legal linguistic research. He fills the blank of domestic legal linguistics research in court discourse from the perspective of foreign linguistics theory system. Hu Haijuan (2004) thinks that legal discourse study has its shortcomings in addition to its achievements, attaching importance to Anglo-American legal system research rather than to the continent law system research, and to cross and direct examination research rather than the judges‟ words, domestic research from traditional semantic perspective with few court discourse of impromptu and interactivity, written language or the clerk transferred records instead of natural court discourse as the corpora of domestic researches. Therefore what we need is to adopt diverse methods and more perspectives to further the study of authentic court discourses as to enrich our knowledge of legal language.

5.3 Semiotics discussions in evidence fields

5.3.1 Evidence theories

Liao Meizhen (2004) makes a survey of foreign legal language research. He introduces Language in the Judicial Review (LJR) by Levi and Walker (1990), and a Linguistic Evidence (LE) written by O‟Barr in 1982. LJR is, a collection of 12 influential scholar's works, a masterpiece via contrast and three part Method so as to weaken the power and credibility of the testimony. LE is concerned with language use in an American state court of general jurisdiction. On the basis of a tape recording of fifty hours of trial activity over a ten-week period, O‟Barr, a social anthropologist, and a research team of people with backgrounds in law, psychology, and anthropology make a study of the rights of the witnesses, and of defendants and then generalizes that the witnesses in court what little or no power. Through the scholars‟ study of the rights of the witnesses and defendants, LE concludes that witnesses have little or no power in court. In chapter 5, the author studies in detail the testimony of witnesses and concludes four conversational styles, the strengths—weaknesses; full description—pieces; overcorrection; and interruption and overlapping. This book is considered a masterpiece of the study concerned with legal language and rights.

5.3.2 Discussions of written evidences

Written evidence researches as the paper finds cover two sides, evidential word study by Zu Wei in 2012 and features of evidence by Meng Hua including classification in 2008, motivations of image evidence in 2010, and the symbolic nature of evidence in 2011 as shown below. Zu Wei (2012) studies two key words in evidence law system

80 “供”and“证”from the cultural perspective of evidence law in ancient China. The paper explains the changes of the two words as to its denotation and connotation under the ancient and modern cultural background. “供”and “证” is a cultural symbol, accounting for law system and law culture, and representing a concept, a process, a consciousness and an attitude. The paper, in Zu Wei‟s conclusion, reflects the changes of the judicial evidence system in our country from heavy confession to light, from zero confession to heavy evidence, from oral confession to Voucher card dominated system. Lin Chunze (2010) makes “a tentative probe into studying approaches to law terms in Russian”. Via the analyses and summarizes the study of law terms, he finds three types of studying approaches to law terms in Russian, namely linguistic, terminological and inter-disciplinary approaches. Meng Hua (2008) discusses three evidences in evidence law, verbal evidence, documentary evidence, and material evidence. He focuses on three parts, evidence as semiotic phenomenon, the real relevance of evidence and written semiotics, in his paper “trifold evidence law of semiotics and its application in evidence law”. He makes an inter-evidence study in evidence law, depicting real correlation ways of various media types of evidence and researching on the relevance of evidence symbols in various media types. It is the author who firstly introduces the concept of intersemiotic theory into evidence law. Meng Hua (2010) states the connotation of evidence symbols in his essay “a semiotic perspective to the image evidences”. He discusses two motivations of image evidence, structural and interpretive motivation. The former, equivalent to Saussure‟s language, is a social structural model of image meaning forming, and a potential production mechanism of the image meaning generating. The latter is, equivalent to the interpretant of Peirce‟s semiology, a real relevance between symbols and their objects. There are two real relevances of interpretive motivation, similarity motivation and mirror motivation. The author concludes that the so-called evidence is not the fact itself but a real correlation, or a symbolized activity. Put it another way, evidence semiotics is a kind of symbolic real correlation but not facts. Meng Hua (2011) makes a “research on the symbolic nature of evidence from the perspective of evidentiality”. This paper provides a semiotic evidence idea. According to this article, the task of evidence science is not the fact itself behind the proof, but the examination about symbolic issues of the evidence, which means the subtle and complicated inconsistency between evidence and fact. Based on analysis of “evidentiality” in linguistics researched results, this paper affirms the theory of this research on the value of evidential semiotics. With an elucidation of the connotation of evidential semiotics embodies in “evidentiality”, the author further reveals that the evidence is just a correlation degree of authenticity, namely the evidence is not the fact, but the symbolization mode of forming a fact and the process of approximating to the real facts.

5.4 Legal awareness in litigation

Zhu Tao (2010) reviewed Getting justice and Getting Even: Legal consciousness among Working-class Americans by Merry Sally Engle (1990) in his essay “the speech competition in legal practice”. Merry discusses three discourses in conflicts to court, legal

81 discourse, moral discourse, and therapeutic discourse, the causes and settlement of the conflicts in the local Courts. She believes court experiences such as effective charges, convincing arguments etc. can build the legal activities and consciousness of the people concerned. Zhu Tao generalizes that the book builds a research foothold of law and society to search law in action, but her research findings lead us turn to discourse analysis, a new field or perspective of sociology research of law. Merry‟s The Lawsuit Words can serve as a representative of wind indicators in legal discourse analysis. Hu Hongbao & Zhang Xiaohong reviewed in 2010 in their essay “language, discourse and law anthropology” Rules versus relationships—the ethnography of legal discourse by Conley and O‟Barr. The book discusses the law discourse from law anthropology's perspective, inspects the characteristics of the discourse in the studies of law anthropology and the change of research orientation from linguistic forms to the content of discourse, to its analysis for the purpose of obtaining its social meaning behind the discourse. The main focus of this book, according to the review, is on discourse analysis, thus creating the ethnography of legal discourse so as to increase the public zeal and confidence. Guo Xinghua, Wang Xiaopei, and Wang Ping translated in 2007 the book The Lawsuit Words: The Legal Consciousness of Life in the Bottom of the People in the United States by Sally Engle Merry. The book realizes from legal anthropology perspective the embedment of legal consciousness to the actual construction of the daily life. Through her two interpretations to the conflict situations, the author discusses the ways of people‟s thinking and understanding law who have brought their problems to court and ways of court staff‟s dealing with them. The book suggests that law be engaged in everyday life instead of staying only in books, be tested and improved and developed so as to obtain vigor and vitality. It is necessary to build a standard legal consciousness in legal system creation. Legal consciousness is the subjective basis of the legal system, and social subject and the subjective psychological feeling of legal phenomenon plays an important role in the initiative and running of the legal system. Xie Donghui & Li Mudan (1999) put stress on the importance of cultivating citizens‟ legal consciousness. YU Weidong (2008) deals in his article “college students‟ legal consciousness and the training way” with the general character of legal consciousness and the specific character of college students, legal consciousness and analyzes the present situation of it. The article mainly focuses on the three effective ways to train legal consciousness of the college students: classroom teaching; extracurricular culture and mass media. In his paper “an analysis of the public‟s legal knowledge in China”, Yang Ming (2007) conducts a survey of “the ideological and moral conditions of Chinese citizens” via “Institutionalization of Legal Reforms in China” to quantitatively examine the public‟s legal knowledge, with the 10,089 experimental subjects of 18-65-year-old citizens in the mainland of China. The paper holds that improving the public‟s educational attainments is the basic for increasing the public‟s legal knowledge and narrowing down the disparity between urban and rural population, and that increasing the coverage of special educational activities about legal systems and making better use of modern media technologies can be effective ways to improve the public‟s legal knowledge in China.

82 6. Translation issues of legal semiotics

Translation of law signs is very important among the cultural exchange between China and western countries. The translation of legal semiotics is a major part of applications in legal researches, including legal concept translation, legal term translation, problems and countermeasures in translation as far as the paper has covered. Li Li (2012) makes the translation of the Chinese legal concept of “qinqinxiangyin”. “Qinqin xiangyin” is an important principle of criminal law in ancient China. Three steps have to be taken to approach the translation of legal concepts: firstly, having a thorough understanding of the source legal concept in its legal system context; secondly, making a lexicon choice in TL corresponding with the idea of SL; thirdly, ensuring the naturalness of the TL in terms of grammar and style. Cheng Le, Sha Lijin & Zheng Yinglong (2009) publish a journal “a semiotics perspective to legal terminology”. This paper attempts to analyze the essence of legal terminology from the perspective of semiotics, assuming that legal terminology is the linguistic symbol of legal concept. Legal terminology as a symbol is of shared attributes of symbols, namely time and space. The meaning of legal terms is only found in certain particular situations. The authors conclude that legal terms are the product of specific economic conditions, and that the same legal terminology in different historical stages can have different connotations. Temporality and spatiality of legal terms are of vital reference to legal interpretation, legal transplantation and legal translation. Li Shuqin & Ma Huijuan (2000) explain the translation methods of trademark terms from a semiotic perspective, deeming that English-Chinese trademark translation is not merely a referential corresponding transformation. More importantly it is dependent on the realization of the transference of associative meaning in order to achieve pragmatic equivalence and to make the trademark translation as effective as the origin. In addition to translation achievements in legal signs, there are evitably some problems. Gu Shidong & Liu Xia (2004) explain in their article “on translation problems of law signs and its countermeasures” concerned with legal translation. There are some problems during translating Chinese law regulations into English such as distortion of translation, adopting complication rather than brevity. The title translation problems of law science articles are likely to be the misuse of capital letters and minuscule and non- standardization.

7. Remaining problems and prospects of Chinese legal semiotics

Legal semiotics in China has made great progress in the past two decades, with publications of high number and quality. Chinese scholars have made great contributions to semiotics and developed their own system concerning semiotics, which are a part of semiotic theory and theory construction. This advance is a great influence to legal aspects like legal phenomena, concepts, theories and texts. It is a beneficial supplement and a prompt to the development of Chinese semiotics and law. Here we have such conclusions regarding the remaining problems and the prospects. 1) Repetitions there are unnecessary replication in semiotic studies, due to heavy attachment to theory rather than to practice. 2) Unbalanced research focus is mainly on commercial law, legal terms and intellectual property. The academic achievements are from a few experts like Le Cheng, Li Xiangkun, Xie Hui, Zhao Yiheng, Wang Mingyu, Guo Hong and etc. And the studies are confined to monolingual English not multilinguals. However, Chinese legal semiotics has

83 exhibited a bright and broad prospect in research and development space. A potential dimension is to widen further and enrich the existing research. Specifically, we assume that we should strengthen legal semiotics in regard to two aspects, theoretical development and application. Now we can predict that Chinese legal semiotics will have “tolerance and diversity” as developing trends in near future such as multimodal perspectives (Zhang Delu et al., 2013), social and cognitive perspectives (Lin Zhengjun & Wang Kefei, 2013) and other diversification. We need “acceptance and appreciation of the rich diversity of our world‟s cultures, our forms of expression and ways of being human.” and prompt “the idea of plurality: plurality of racial, ethnic, religious and linguistics minority groups” of local contexts. (Wagner et al, 2012: 2) “Approaching judicial thinking from a discourse-centered perspective will enable us to have an evidence-based understanding of judicial thinking encoded in Chinese court judgments, which is still an uncharted domain for the English speaking scholarly audience.” (Cheng Le, 2012) Here are some prospects of legal semiotics. 1) Expand the quantitative research. Make practical applications of their research with more illustrating cases instead of too much theory. 2) Advocate the research approach of multimodes; strengthen diversification, and interdisciplines in semiotics and other disciplines, such as ecological semiotics and cognitive semiotics, multimodal semiotics, etc., in fully learned pedagogy, psychology and linguistics. Multimodal discourse theory provides an important theoretical perspective for the cognizance of legal facts. This multimode requires a further integration of globalization with localization, an effective combination of best achievements in the world with the rich local resources of legal culture in Chinese tradition. 3) Strengthen indigenous researches, and develop localization of semiotics research in China, embodied with Chinese Characteristics. It prompts a localization of Chinese legal semiotics concerning local context like ethic minorities in Chinese culture so as to generate meaning production within localized contexts. Chinese brilliant culture, profound philosophical thoughts and pictographs provide a forceful base and a broad prospect for the legal semiotic research with Chinese characteristics.

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86 ZHAO, Yiheng (2011): Semiotics and media (2) Bashu Publishing House. ZHU, Tao (2010): Speech competition in legal practice: a comment on Merry‟s Lawsuit Words. Sociological studies. (6): 223-237. ZU, Wei (2012): A cultural perspective to ancient evidence law: in cases of “供” and “证”. Journal of Liaoning University (Philosophy and Social sciences edition). (4): 119-126.

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Chinese Translation of Long Sentences in Legal English: From a Contrastive Study Perspective

XIAOJUAN LIU

China University of Political Science and Law

BIODATA Xiaojuan Liu is a Ph.D. candidate at School of Law, China University of Political Science and Law, Beijing, China. Her postgraduate dissertation is entitled Tribunal System in the United Kingdom—Highlighting Land Tribunals. She has participated in several research projects, such as Study on Recruitment of Civil Servants, Regulatory Measures on Beijing’s Population Control, Regulation Reforms in Stock Markets. Her interests include Administrative Law, Comparative Administrative Law, and Administrative Litigation Law. She can be reached at [email protected].

ABSTRACT With the expansion of global exchanges and trade, legal English has gained significance. An important stylistic feature of legal documents in English is the preponderance of long sentences, which can be boiled down to the preference of legal English to hypotaxis, nominalization and repetition, among other things. Due to the difference between languages, cultures and customs, translation has always been difficult. In translation, the translator has to create texts within the framework set by the original text and often has to strive for a balance between faithfulness to the original text in meaning and to faithfulness in form. The dominance of long sentences has made translation in the legal context even thornier. The thesis analyses the factors contributing to long sentences in legal English and attempts at proposing some basic strategies for the Chinese translation of Legal English, including transformation of hypotaxis into parataxis, reduction of nouns into verbs, reconstruction, adoption of four-word structures and ellipsis, from the perspective of contrastive studies of English and Chinese.

KEYWORDS legal English, long sentences, translation strategies, contrastive studies

Introduction

Translation has played a significant role in the modernization of legal system in China.

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According to Fei Xiaotong (1985:53), the traditional Chinese society is one governed by rites, instead of law. Disputes were more likely resolved by elders of clans than courts of law. In such a society, litigation is deemed a shame. As a result, the feudal China had no well-defined legal system, until late Qing Dynasty, when the westernization movement brought about large-scale introduction of legal writings from the West, prompting the disintegration of the legal system of feudal China and accelerating the modernization of law. (Yao Qi 2006) Currently, China is redoubling efforts to realize rule-of-law. And “Rule-of-law in China” has been established in The Third Plenum of the CPC’s 18th Central Committee as the orientation and objective of the socialist democratic reform. It is necessary to draw from overseas experiences to make the endeavor a success. Therefore, it is cogent that we reinvestigate the principles for transformation of legal English. However, written legal discourse, especially prescriptive legal documents, is considered a genre not only among the least communicative of all uses of language but about as far removed as possible from informal spontaneous conversation (Crystal D. and D. Davy. 1969: 193-194). The reason can be attributable to the unique features of legal English, preponderance of long sentences among the rest. According to a study carried out by Wang Zuoliang and Ding Wangdao (1987: 287), in legal English the length of sentences are far greater than that of the average English sentences which stands at 17 words. In much the same vein, Haggard pointed out that the average length of sentences by legal drafters is 26 words (Sun Wanbiao 2003: 4). Take the following sentence for example. This treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. This sentence, consisting of 61 words, is by no means the longest sentence in legal documents. For translators, the frequent occurrence of long sentences is a bane. While lexical preferences can be addressed in translation with the assistance of dictionaries and previous examples, long sentences has always been a daunting issue for translators. More than one scholar (Sun Wanbiao 2004; Li Kexing 2006; Du Jinbang 2004, etc.) have studied the transformation of long sentences in legal context. For example, Xu Youping conducted a survey among junior and senior students majoring in international economic law and found that 75% of the subjects described translation of long sentences as “difficult”, while the rest 25% described it as “very difficult.” (Xu Youping, 2009:73-74) However, those studies have primarily dealt with the practical techniques for translating contract clauses, from the view of linguistic analysis. The present author aims at the unveiling underlying factors contributing to pervasive long sentences in legal English and proposing some strategies for translation from the perspective of contrastive studies of English and Chinese.

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1. Factors Contributing to Prevalent Long Sentences

1.1. Preference to hypotaxis

In the 1960’s，American grammarian Noam Chomsky proposed the following formula for English sentences: S=NP+VP (Hu Zhuanglin 2001: 115). From the formula it can be seen that a grammatical subject is indispensable to any typical sentences in English. In other words, English can be termed a subject-prominent language. With this structure, i.e., the main clause, as the spinal cord, various elements are added, until the short sentence becomes a bunch of well-arranged and properly balanced clauses, in the manner of grape bunches. In the while, the sequence of linguistic elements may be governed more by contextual and formal requirements than by logical or temporal factors. In legal documents, there is one more dimension at work—the principle of all-inclusiveness, which is often essential in a legal document if every possible circumstance and eventuality is to be envisaged (Bhatia V. K. 1994: 136-155). As a result, the feature of hypotaxis in legal English is even more pronounced, creating various long and complex sentences, with intricate patterns of coordination and subordination. Take the following sentence for example. If, after informing the supervisory authority concerned under subsection, any measures taken by the supervisory authority against the insurance undertaking concerned are, in the opinion of the regulatory authority, not adequate and the undertaking continues to contravene this Act, the regulatory authority may, after informing the supervisory authority of its intention, apply to the High Court for such order as the Court may seem fit, in order to prevent further infringements of this Act, including, insofar as is necessary and in accordance with the Insurance Acts 1909 to 2000, regulations made under those Acts and regulations relating to insurance made under the European Communities Act 1972, the prevention of that insurance undertaking from continuing to conclude new insurance contracts within the State. The 123-word sentence contains only one main clause, with various attributive and adverbial elements inserted in the subordinate clauses, like those after the underlined words If, are, may and including. Bhatia remarks that most legislative provisions are extremely rich in qualificational insertions within their syntactic boundaries… (Bhatia V. K. 1993: 111). These qualifications often arises from the attempt by legal draftsmen to insert qualifications immediately before or after the word they are intended to qualify, sometimes at the cost of making their legislative sentences awkward or tortuous but never ambiguous.

1.2. Preference to nominalization

Nominalization refers to the practice of using the nominal form of a verb rather than the

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verb itself to express an act or an action, as in the case of using “in violation of” in stead of “violate.” Nominalization helps create a sense of objectivity for the text and it acts as a “masking device” by withholding the identity of the actor(s). It not only obscures the participants but also the time, space and modality, thus attaining extra objectivity and non-negotiableness. In addition, the impersonal style also enhances the authoritativeness of the language. All in all, nominalization is suitable and common for intricate legal language expressing abstract concepts (Ji Yiguang 1999: 31-34). The following sentence is a typical example. Amendment XXI Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. This article sets out in one sentence various behaviors banned of liquors in the US. In the underlined sections, nominal structures have been used instead of verbs. In fact, just as Tiersma and Jackson have found, drafters of legal documents frequently resort to nominalization. In China, the research findings of Wang Jinjun (2003: 75-78) corroborate this assertion. Wang has made a statistical analysis on the application of normalization in 20 pieces of writing from five different genres, namely, scientific writing, legal writing, news, novels and fables, and found that there is marked difference in application of nominalization, with legal writing taking up the top position of the rank. Specifically, in legal documents nominalization occurs in 83.5% of the clauses where a verb shall suffice. This trait can be contributed to the pursuit of legal document for accuracy, authoritativeness, and completeness of information. When a verb is used, it is only one word. However, in the case of nominal structures, two prepositions plus the nominal form are required, thus adding to the length of clauses.

1.3. Preference to repetition instead of pronouns

Brevity is the soul of wit. However, sometimes brevity is sacrificed for clarity and accuracy. In legal English, it is a common practice to adopt repetition of particular words, expressions and syntactic structures instead of using pronoun references or other types of cataphora or anaphora. The reason for frequent occurrence of repetition is to eliminate any ambiguity regarding what is being referred to, despite the fact that beyond the legal context such a practice could seem odd and even awkward. Take the following sentence for example. Where -(a) a member of a Board is appointed to be vice-chair either by the Assembly or under regulation 10, and -(b) the chair of the Board has died or has ceased to hold office, or is unable to perform the duties of chair owing to illness, absence from England and Wales or any other cause, the vice-chair shall act as chair until a new chair is appointed or the existing chair resumes the duties of chair, as the case may be; and references to the chair in Schedule 3 shall, so long as there is no chair able to perform the duties of chair, be taken to include

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references to the vice-chair. In this clause stipulating the powers of the chairman, lexical item repetition is conspicuous—the nouns “chair” and “vice-chair” occurs nine times and four times respectively, out of a total of 114 words.

2. Translation in the legal context

The ultimate purposes for translating legal documents are acceptance and then practical enactment. The message sealed in the words by the author of the original English text should be reproduced, and the characteristics and norms of the target language (Chinese) should also be followed, so that it gets fully understood by the readers and becomes legally binding. Otherwise, the translation may fail to get enacted, let alone to achieve its purpose. For example, the translational errors in the Chinese version of The International Covenant on Civil and Political Rights have postponed its ratification by the Chinese government to some degree. Worse still, they might jeopardize the rights entitled to all Chinese speaking people. (Yang Yuguan 2013: 29-48) Therefore, translation in the legal context is far more than a literal, word for word matching between languages; instead, it can be considered a negotiation between meaning and form by the translator, with meaning as the dominant factor.

3. Strategies for Chinese translation of long sentences in legal English

Generally speaking, strategies to be followed in Chinese translation of long sentences in legal English should include transformation of subject prominence into topic prominence, de-nominalization, reorganization, application of four-character expressions and omission.

3.1. Transformation of subject prominence into topic prominence

In contrast to the S=NP+VP formula in English, the Chinese language assumes a quite different picture, for example, Shen Xiaolong analyzed the sentences in Lu Wenhui’s novel The Well and concluded that 49.6% of its sentences, or 1054 in total have no identifiable subject or verb. This conclusion applies for legal English. Take the sentence “关于公路交通事故的法律适用，很多国家未作专门规定，实践中多按照一般侵权处 理” for example. It does not fall into the category “Subject +Verb”, since there is no grammatical subject to be located. Instead, it would be more appropriate to analyze the sentence as “S=Topic + Comment”，with “关于公路交通事故的法律适用”as the topic and “很多国家未作专门规定，实践中多按照一般侵权处理” as the comment. In this example, the topic “关于公路交通事故的法律适用” takes place of the grammatical subject to make clear about what the sentence is going to deal with. So

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Chinese would be better described as topic-prominent. The very characteristic has led to the arbitrariness of subject existence. Since the existence of the grammatical subject can be arbitrary, some Chinese sentences are not so readily convertible into the SVO order, especially in such cases that the thematic subject, i.e., the topic, is marked. In addition, apparently there is no covert hierarchy between clauses—all clauses seem to be of the same level of importance and there seem to be no main clauses. Since the Chinese language tends to be paratactic, the hierarchy between clauses can only be discerned on the semantic level, but that will not be dealt with here. The characteristic of topic prominence mandates arrangement of information in sequence of occurrence, logic, time or etc.—a sequence that will make the information flow natural and ambiguity-free. Projected on translation, it requires transformation of subject prominence into topic prominence so as to make the translation friendlier to the Chinese readers. For example, If two or more applicants apply for registration of identical or similar trademarks for the same kind of goods or similar goods, the trademark whose registration was first applied for shall be given preliminary examination and approval and shall be publicly announced; if the applicants are filed on the same day, the trademark which was first used shall be given preliminary examination and approval and shall be publicly announced, and the applications of the others shall be rejected and shall not be publicly announced. 两个或者两个以上的申请人，就同一种商品或者类似商品，以相同或者近似 的商标申请注册的，初步审定并公告申请在先的商标；同一天申请的，初步 审定并公告使用在先的商标，驳回其他人的申请，不予公告。 The subjects of the conditional clauses, i.e., “applicants”, have both been turned into topics, i.e., “两个或者两个以上的申请人” in line with the habits of the Chinese language.

3.2. Reconstruction

The hypotactic propinquity of the English language requires proper arrangement of sentence elements for the purpose of balance, aside from making sentence expansion seemingly infinite. As a result, the elements of English sentences are often not arranged in logic, temporal or other order. However, Chinese tends to be paratactic, i.e., to join characters and other elements into semantically valid sentences where the requirements are strong for logical and temporal sequence, just as Edwin G. Pulleyblank once wrote in his Outline of Classical Chinese Grammar, “Where English and many other languages use hypostatic construction, with relationship of subordination explicitly marked by connectives and verbal morphology, Chinese very often uses parataxis, leaving the semantic relationships to be inferred from the rest.” (Edwin 1995:198) In translation, reconstruction is a must. Specifically, the various sentence elements should be rearranged in the proper order or readjusted.

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3.2.1. Transformation of Dependent Clause into Independent Sentences while Retaining the Original Structure

In some cases, the original order can be retained, but readjustment is necessary. For example, Two decades ago the House of Lords declared that the strict doctrine of precedent does not require it to follow its own past decisions—before that declaration British lawyers had assumed that the strict doctrine did require this—but the House nevertheless gives great weight to its own past decisions, more than it gives to past decisions of courts lower in the British hierarchy, and much more than it gives to decisions of American courts. 20 年前，英国议会上院宣称，严格的先例原则并不要求该院遵循已有判例。 此前，英国律师曾认定严格的先例原则要求如此办理。然而，上院在做出上 述宣告后，仍高度重视其判例，但是对下级法院的判例没这么重视，对美国 法院的判例则更不重视。 The original sentence contains three clauses, which are all translated into independent sentences in the Chinese version.

3.2.2. Reorganization of Information in Logical (or Chronological) Order

In other cases, Chinese, it is imperative that the logical and chronological order be restored, so that readers may understand the ins and outs of an issue or statement. Take the following sentence for example. One function that has been served by the point of novelty test, according to Swisa and its supporting amici, is to cabin unduly broad assertions of design patent scope by ensuring that a design that merely embodies or is substantially similar to prior art designs is not found to infringe. Swisa 及支持它的法庭之友声称，新颖性测试实现的一个功能是确保那些只 是体现或在很大程度上类似于先前设计的新设计不构成侵权，从而限制设计 型专利范围认定过宽。 The qualificational insertion, i.e., the underlined sections, in the original sentence have been rearranged in the Chinese version so as to accord with the logical order—that of action and purpose. The following is yet another example: The assertion that it was difficult, if not impossible, for a people to enjoy its basic rights unless it was able to determine freely its political status and to ensure freely its economic, social and cultural development was now scarcely contested. 如果一个民族不能自由决定其政治地位、不能自由保障经济、社会和文化发 展，要享受基本权利，是很困难的，甚至是不可能的。这一论断已经几乎无 可置辩。 Here the subordinate clause in the original sentence has been extracted and translated into a separate sentence and repositioned, while the main clause is also turned

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into an independent sentence.

3.3. De-nominalization

De-nominalization refers to transformation of nominal structures into verbs. English is a nouny language, while Chinese is a verby language (Liu Danqing 2010: 3-18). Nouns are far more important in English than in Chinese. However, it is quite a different picture for verbs, which are admittedly significant for many languages, but Chinese seems to value it the most. Specifically, on occasions where nouns or nominal structures are the only alternative or strongly preferential for English, verbs can be freely used for Chinese. On occasions where nouns or verbs are acceptable for English, verbs must be adopted for Chinese. Therefore, it is not only justified but also mandatory to render nominal structures into verbs during translation of legal English into Chinese. The Mortgagor shall pay to the Mortgagee or to its order on demand all costs and expenses whatever (including, without limitation, legal costs, registration fees, VAT and stamp duties) incurred by the Morgagee in connection with the negotiation, preparation, completion, registration, and perfection of this Mortgage and the maintenance, protection, and enforcement of the security created by or intended to be created by or pursuant to this Mortgage or any of the Mortgagee’s rights whatever under this Mortgage. 抵押人应付，或在被要求时应付，被抵押人因抵押权之设定含协商、准备、 完成、登记、修正而产生的任何费用(包括但不限于法律费用、登记费用、 增值税、和印花税)，以及为维护、保护、和执行本抵押权，或因本抵押权 之设定所预期为维护、保护、和 执行本抵押权或被抵押人的权利，所产生之 费用。 In this example, nouns (nominal structures) in the original are turned into verbs respectively.

3.4 Application of four-word structures

Single characters are the elemental units for Chinese sentences. In Chinese, phrases and word groups are much fewer, both in category and in number. While such grammatical structures as absolute structure, or participle phrases or infinite structures are common in English, they are quite scarce in Chinese. Neither is there any usage of dummy “it”. The paratactic nature of the Chinese language determines that words are sufficient for the purpose of sentence building. However, four-word structures, most of which are idioms, are frequently employed to give the sentence an audio beauty and additional succinctness. For example, 各国必须例行宽恕，彼此以善邻之道，和睦相处，集中力量，以维持国 际和平及安全，接受原则，确立方法，以保证非为公共利益，不得使用武力。 The underlined four-character structures are constructed on the basis of rhythm. And

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their application lends an extra idiomatic flavor to the language, while making it concise. Accordingly, in translation of legal English, four-word structures can be employed. Take the following sentence for example: The Emperor of China agrees to pay the sum of Six Millions of Dollars as the value of Opium which was delivered up at Canton in the month of March 1839, as a Ransom for the lives of Her Britannic Majesty\'s Superintendent and Subjects, who had been imprisoned and threatened with death by the Chinese High Officers. 因饮差大臣等于道光十九年二月间，将英国领事官及民人等，强留粤省， 吓以死罪，索出鸦片，以为赎命。今大皇帝准以洋银六百万圆，补偿原价。 In the translation, five four-word expressions are adopted, giving it a succinctness and forcefulness incomparable by ordinary clauses.

3.5 Ellipsis

Traditional Chinese is concise and noted for conveying the most complex message with the fewest characters. Undoubtedly Chinese of the old style carries with it an impressive dignity through the immediate succession of nothing but momentous notions; it acquires a simple greatness because it throws away all unnecessary accessory elements and thus, as it were, takes flight to pure thinking. (O. Jesperson 1924: 153) In Chinese translation of legal English, ellipsis plays an important role. Specifically, some words or components of the source language should not be translated, since they would be redundant in Chinese, or their meaning is obvious, or they will cause burdensome or interfere with fluency. Many kinds of word class and components in English can be omitted in Chinese. Take the following sentence for example. The Government of China having compelled the British Merchants trading at Canton to deal exclusively with certain Chinese Merchants called Hong Merchants (or Cohong) who had been licensed by the Chinese Government for that purpose, the Emperor of China agrees to abolish that practice in future at all Ports where British Merchants may reside, and to permit them to carry on their mercantile transactions with whatever persons they please, and His Imperial Majesty further agrees to pay to the British Government the sum of Three Millions of Dollars, on account of Debts due to British Subjects by some of the said Hong Merchants (or Cohong), who have become insolvent, and who owe very large sums of money to Subjects of Her Britannic Majesty. 凡英国商民，在粤省贸易，向例全归额设商行亦称公行者承办，今大皇 帝准其嗣后不必仍照向例，凡有英商等赴各该口贸易者，勿论与何商交易， 均听其便。且向例额设行商等，内有累欠英商甚多，无措清还者，今酌定洋 银 300 万元，作为商欠之数，由中国官为偿还。

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In the original sentence, “the Government of China” appears twice, but in the Chinese translation, it appears only once. In addition to the ellipsis of lexical repetition, some words or phrases can be omitted from the grammatical or rhetoric point of view. Consultant will deliver to Client all Confidential Information and all copies thereof when Client requests the same or immediately upon termination of this Agreement, whichever occurs earlier, except for one copy thereof that Consultant may retain for its records. 客户要求时，或本协议终止时（以两种情况中先发生的为准），顾问将 向客户提交所有机密信息及所有副本，但顾问可以存档的一份副本除外。 The words thereof and hereof have no equivalent expressions in the Chinese version. In legal English, both words appear quite frequently, to increase the precision of the statement and the “flavor of law”. However, on most occasions, words like this are omitted in the Chinese language.

Conclusion

The thesis studies the reasons contributing to the predominance of long sentences in legal English and proposes from the perspective of contrastive studies some strategies for the translation of long sentences. In short, during the transformation of English sentences into Chinese, topic-prominence and parataxis, that is, the characteristics of the Chinese language should be followed. It goes without saying that those principles are subject to the discretion of the translator, since some of the original language features are becoming blurred due to natural evolution of languages. For example, contemporary ideas can no longer be fully expressed with four-character structures, but it is suggested that the course of nature be followed (Wang Li 1984: 458). Some might argue that the transformation principles are lacking in attention to the preservation of the original form. Language is a device for communication of messages, so language and linguistic forms are means to an end rather than an end in their own right. The content is what the source wishes to convey; the form is the external shape of the message. So in ordinary cases, forms are of secondary importance. The best choice would be to transfer the message without damage to the form. However, when such a choice is not available, the emphasis should be laid upon the effective transference of the content, since any excessive effort to preserve the form would bring about loss of information.

REFERENCES

BHATIA, V. K. (1993): Analyzing Genre: Language Use in Professional Settings. London: Longman. CRYSTAL, D. and Davy, D. (1969): Investigating English Style. London: Longman. DU, Jinbang (2004): Problems in and solutions for translating Chinese laws and regulations into English. Chinese Translators Journal.3: 68-75. PULLEYBLANK, Edwin G. (1995): Outline of Classical Chinese Grammar. Vancouver: University of

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British Columbia Press. FEI, Xiaotong (1958): From the Soil: The Foundations of Chinese Society. Beijing: Shenghuo-Dushu-Xinzhi Joint Publishing Company. HU, Zhuanglin (2001): An Introduction to Linguistics. Beijing: Peking University Press. OTTO, Jesperen (1924): The Philosophy of Grammar. London: George Allen & Unwin Ltd. JI ,Yiguang (1999): Stylistic features of legal English and translation techniques. Chinese Translators Journal. 4: 31-34. LI, Kexing, ZHANG, Xinhong (2006): Legal Texts and Legal Translation. Beijing: China Translation & Publishing Corporation. LIU, Danqing (2010): Chinese as a verby language: On typological differences between verby languages and nouny languages, Chinese Teaching in the World. 1:3-18. SUN, Wanbiao (2003): A Course in Chinese Translation of Legal Documents. Shanghai: Shanghai Foreign Language Education Press. HUXLEY, T.H. (2009) Evolution and Ethics. (translated by Fu Yan) Beijing: China Youths Press. WANG, Jinjun (2003) Nominalization in different genres. Foreign Language Research. 2: 75-78. WANG, Li (1984): A Theory of Chinese Grammar, Collected Works of Wang Li, Volume 1. Jinan: Shandong Education Press. WANG, Zuoliang, DING ,Wangdao (1987): Introduction to English Stylistics. Beijing: Beijing Foreign Language Teaching and Research Press. XU, Youping (2009): Difficulties for translating long sentences in legal English and countermeasures. Time Education. 6: 73-74. YANG, Yuguan (2013): A study on translation and ratification of the International Covenant on Civil and Political Rights. China Legal Science. 5(1): 29-48. QI ,Yao (2005): Introduction to legal system in late Qing Dynasty and its influences. Journal of Qinghai Normal University. visited February 17, 2014 . ZHAO, Xianglin (2010): International Private Law. Beijing: China University of Political Science and Law Press.

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Narrative Study on Witnesses’ Involvement in Their Statements

LI SUN

North China Electric Power University, Beijing, China

BIODATA

Li Sun, Ph.D. in Forensic Linguistics at School of Foreign Languages, North China Electric Power University. Her research interest and publications are in the fields of forensic linguistics and legal translation. She can be reached at [email protected].

ABSTRACT The present study, based on Labov’s narrative theory, focuses on how witnesses’ involvement affects their narrative reconstruction of the criminal case. Witnesses’ involvement is first subcategorized and there are two circumstances concerning their involvement, one being single suspect versus victim(s) crime and the other multi-suspects versus victim(s) crime. The present study takes four witness statements from a single suspect malicious injury case as data to further analyze the effects exerted by different witness involvement on witness statements and their corresponding representations. Results of the analysis indicate that how witnesses are involved in the criminal event exert different effects on witness statements in three aspects: narrative structure, participant distribution, and language strategies. The results of this study further reveal that the more legal responsibility a witness is likely to take for the criminal event, the more transformations he would make in his narrative reconstruction of the crime.

KEYWORDS witnesses’ involvement, witness statements, narrative, participant distribution, language strategy

1. Introduction

Witnesses’ involvement refers to their roles in an alleged case. Here the definition of witness is a broad one, which ―includes eyewitnesses, parties and expert witnesses as well‖ (Wang 2002: 1). How witnesses are involved in alleged criminal cases determines what stance they take in reconstructing the criminal events in their statements, because how the witnesses are related to the crime determines their responsibility distribution for the alleged crime. Every word in the witness statement represents complicated relations and legal obligation of the persons involved in that ―language expressions concerning legal activities contain social relations related to the law‖ (Du 2004: 54). Witnesses are normally given freedom to tell their own story about the criminal

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event which constitutes the body part of witness statements. Their stories are usually put forward in a narrative way. How much the witnesses are involved in the criminal event will probably manifest its influence on the witnesses in their narrative reconstruction of the criminal event. It is reasonable to assume that witnesses ―transform reality by techniques more subtle and effective than lying‖ (Labov 2001: 14) when telling the truth brings disadvantages to themselves. Labov’s narrative study (1972: 363) first lay out a six-part structure model ―Abstract, Orientation, Complication action, Evaluation, Resolution, and Coda‖. In his following studies, Labov (1997) puts more emphasis on temporal organization in complication action and evaluation of narrative and regards them as the two backbones of narrative in fulfilling the referential and evaluative functions respectively. He proposes that a narrative can be viewed as a theory of the causes of the most reportable event, and the chain of causal events selected in the narrative is intimately linked with the assignment of praise and blame for the actions reported. From Labov’s view of narrative structure, it can be concluded that narrative organization may be determined by the chain of causal relations and the assignment of praise and blame, that is, the temporal organization and evaluation (which is also labeled as an ideological framework by Labov). Labov (2001) uncovered the event structure of narrative by analyzing a witness statement of a criminal case. The crime is an intentional homicide case co-committed by two suspects, and the witness statement chosen as data for the analysis is produced by one of the suspects. Labov used the method of participant analysis, semantic analysis of crucial verbs, and analysis of deleted events to reconstruct the underlying structure of the crime.

2. Classification of witnesses’ involvement

The witnesses involved in the alleged crime usually include three parties, with one party as suspect of the crime, one party as its victim, and others who have witnessed the crime. However, there are two circumstances concerning the involvement of suspect in criminal cases; one is the single suspect versus victim(s) crime, and the other is multi-suspects versus victim(s) crime. The distinction is made by the number of suspect instead of victim mainly because the multi-suspects crimes always involve the conflict of interest between the suspects themselves. In a crime where there is more than one suspect, usually one suspect would try to avoid his connection with the crime as much as possible by blaming the crime on the other suspect or other suspects; whereas this kind of circumstance would not happen to the victims because multi-victims in a crime suffer from the same criminal action and have the same purpose of suing the suspect. Therefore the analysis of witnesses’ involvement in criminal cases would be done within the categories of the single-suspect crimes and multi-suspect crimes respectively. This paper only examines the first circumstance by taking witness statements from a single-suspect crime as the study data.

3. Effects of different involvement on narrative structure

The effects of different involvement in a criminal case can be first and foremost reflected

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on the narrative structure of witness statement. As mentioned above, witnesses are allowed the most freedom in their narrative reconstruction of the criminal event. Therefore the narrative can provide them with the utmost space to express their own view towards the criminal event and subtly turn their account of the criminal event to a favorable direction. As Labov (1997) has described, temporal organization and evaluation of narrative are the sequential and ideological frameworks of narrative. The sequence of the specific actions in one criminal event also represents the causal relation of the actions. The part of evaluation assigns the narrator’s praise and blame for the actions reported in the narrative. Therefore different involvement in a criminal event can have different impact on the perspectives of temporal sequence and evaluation of the witness’ narrative.

3.1. Effects of different involvement on temporal organization

Sequence of actions can greatly represent the causal relation in a criminal event. When a witness describes how a criminal event happened in his statement, which action happened first and which one happened next plays a crucial role, for example, a criminal action that happened first could place the doer of the action at a disadvantage in that he should take more or sole responsibility for the criminal event. This paper takes four witness statements from a Chinese Malicious Injury case as data for analysis. This criminal event is reconstructed by four witnesses in quite different ways. Great discrepancies appear on the temporal organization of the criminal actions among the witness statements. The sequential clauses about how the main criminal actions developed are drawn out and presented in Appendix 1. The clauses are mainly excerpted from the components of complicating action and evaluation in the narrative part of the four witness statements. All the clauses are presented exactly according to the sequential order in which they appeared in the witnesses’ narratives. All the given names of the witnesses that appear in the study are replaced by asterisks; most of the names of the witnesses consist of three Chinese characters, with the second and third representing the given name, and the first representing the family name. The general circumstance of the malicious injury case can be retrieved from the comparison of the four narratives in Appendix 1. The crime started from a quarrel between the suspect (Liu **) and the female victim’s grandfather (Old Wang) at the gate of the female victim’s house. The cause of the quarrel is that the suspect has been annoying and unreasonable to Old Wang. The female victim (Wang **) came out to help her grandfather and shouted abuse at the suspect (Liu **). Thus the suspect was irritated and ran back home to take a knife and then injured the female victim’s head. The male victim (Li **), the female victim’s husband, then took a shovel to fight with the suspect and both of them were injured in this fight. Finally the eyewitness and other neighbors helped to stop the fight. The comparison between the statement of the male victim and that of the suspect may leave us puzzled that they both are describing the same event, yet in their narratives the same action happens in different temporal sequence. Firstly, the actions are picked out sequentially from the eyewitness’ statement and marked by numbers according to the sequence. The sequence of actions in the other witnesses’ statements will be compared with that in the eyewitness’ statement.

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The actions picked out sequentially from the eyewitness’ statement are (1) ―quarrel‖ — (2) ―the suspect’s taking a knife to cut the female victim‖ — (3) ―male victim’s taking a shovel to fight with the suspect‖ — (4) ―the suspect’s cutting the male victim with the knife‖ — (5) ―the suspect and the male victim’s fight for the knife‖. The comparison of the sequences of the actions from the four witnesses’ statements is presented as follows:

TABLE 1 Comparison of sequeces of actions Witness Sequence of actions eyewitness (1)-(2)-(3)-(4)-(5) suspect (1)-(3)-(2)-(4) female victim (1)-(2) male victim (1)-(2)-(4)-(5)-(3)

Intentional distortions of temporal sequence of criminal actions have been found in the statements of both the suspect and the male victim. The suspect brought forward the time juncture at which the male victim took out the shovel to fight with him. In the suspect’s statement, when he took out the knife from his house, the male victim had already held a shovel in his hands in [8] (see Appendix 1), so he chopped at the female victim’s head with the knife, see [9]. There exists a question at this juncture: if one victim held a shovel in his hand and another victim did not have any weapon in her hands, why would the suspect choose the unarmed female victim and so leave himself in a much more vulnerable position threatened by another male victim holding a weapon? Here a distortion of sequential organization by the suspect can be found based on the statements of the other three witnesses in Appendix 1. Clauses [3] and [4] in the female victim’s statement, clause [2] in the male victim’s statement and clauses [4] and [5] in the eyewitness’ statement all indicate that the male victim only took a shovel after the suspect had injured the female victim with a knife. The male victim delayed the time when he took out the shovel to fight with the suspect. The male victim insisted that he took a shovel for defense after the suspect had injured him in his face with a knife, see [9] and [10]. According to the eyewitness, the male victim took a shovel to fight with the suspect when he saw his wife (the female victim) was injured by the suspect in [5], and the eyewitness and other neighbors held him back and took his shovel away in [6]. Then the suspect got the opportunity to stab the male victim with the knife in [7]. And this temporal sequence of the fight is also justified by other eyewitnesses, which indicates that the male victim intentionally delayed the time of taking the shovel to fight in his narrative. By suspending the time of taking a shovel to fight with the suspect, the male victim can avoid taking responsibility for intentional injury to the suspect with the shovel and he later regarded the suspect’s injury as an inadvertent wound caused by his struggle for the knife with the suspect. The distortion of temporal sequence in the male victim’s narrative could be caused by his fear of taking possible legal responsibility for the injury that he brought to the suspect. It seems that both the female victim and the eyewitness did not change the temporal organization in their narratives. Their narratives about the criminal event are consistent with each other. The actions from [1] to [4] in the eyewitness’ statement

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described how the quarrel between the suspect and female victim began and how the suspect injured her with a knife. These actions totally coincide with those in the female victim’s statement. After the criminal action the suspect performed to the female victim, there is no mention of her in this eyewitness’ narrative, thus it is reasonable to assume that the female victim has been seriously injured and lost the ability to help her husband (the male victim) to fight with the suspect. This also confirmed the self-description of unconsciousness after she got injured in [5] and [6] in the female victim’s statement. So far the eyewitness and female victim’s statements have corresponded faithfully to the temporal sequence of the criminal actions later figured out by the law enforcement officers. From the above comparison and analysis of the statements by four witnesses of different involvement, we can see that both the suspect and the male victim transformed their reconstruction of criminal events by changing the temporal sequence of the specific criminal actions in their narratives. They intentionally made the transformation of the criminal event in order to minimize their own guilt and responsibility for the actions they performed in the crime in that the underlying causal relation changes along with the temporal sequence of specific criminal actions most of the time. The suspect’s transformation through distorting temporal sequence is not due to natural memory loss or any other objective influences; it is affected by the mental state of the witness who is involved in the case as a suspect. That is, the transformation of temporal sequence is produced in the process of choice-making of the witness when he is treated as a suspect and interrogated by the police officers. The male victim was reluctant to make a totally faithful reconstruction of the criminal event in that he also injured the suspect in this fight, and it is hard to say whether he did it intentionally or inadvertently. Thus he was afraid he might have to take partial responsibility for the crime, which determines his special involvement in this case and his complicated mental state in the reconstructing process of the criminal event. Therefore it is clear that different involvement in the criminal case can change the temporal sequence in witnesses’ narratives. The more responsibility the witness has to take for the crime, the more distortions he might make in the temporal sequence in his narrative. The female victim and the eyewitness who do not take any responsibility for the crime did not change the temporal organization in their narratives, which also indicates that witnesses who are free of responsibility for the crime can be quite faithful in reconstructing the criminal event in their statements.

3.2. Effects of different involvement on witnesses’ evaluation

Evaluation represents ideological framework in narrative. By evaluation, the narrator assigns his praise and blame in his narrative. In their narrative, witnesses are allowed to give their free recall of the criminal event which provides them with the opportunity to give their personal evaluation about the criminal event. Witnesses are very conscious of evaluation in the narratives they make in police interviews in that the evaluation part can show their own judgment on the assignment of responsibility for the criminal event. Thus the component of evaluation in narrative can also be regarded as a strategy used by witnesses to express their personal opinion on the crime. The suspect gives his evaluation in [6] in Appendix 1 that he was not strong

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enough to fight with the three members of the victim’s side (female victim, male victim and one eyewitness Old Wang). The suspect used the evaluation to justify that he had to take the knife to fight with the victims in [7]. But this evaluation is proven false by statements of the victims and eyewitness who all stated that the fight did not begin until the suspect started it by injuring the female victim’s head with a knife. Thus the suspect had made up evaluation of the criminal situation to protect his own interest. The female victim made her comment on the suspect by the evaluation in her statement. She said that the suspect had been unreasonable at that time in [2] and so she had to quarrel with him which directly led to the suspect’s execution of the criminal action to her in [4]. The suspect’s being unreasonable can also be inferred from other witnesses’ statements. Thus the female victim just assigned the blame on the suspect for provoking the quarrel and fight. Besides, she also made a self-comment in [7] and [8] that she was totally telling the truth and she would not say things that she did not experience, which enhanced the reliability of her statement. Neither the male victim nor the eyewitness used evaluation to express their personal attitudes or opinions on the criminal event in their narratives. The male victim was drawn to the crime by the suspect’s criminal action towards the female victim. There was no time for him to tell what actually caused the fight. Thus his narrative mainly focused on the fighting part in the criminal event. The eyewitness is supposed to be the impartial person in reporting what happened in the crime; therefore he scarcely gave any personal attitudes or judgment on the criminal actions. Different involvement in a crime may bring different effects on witnesses’ evaluation in their narratives. The suspect made an evaluation to fake part of his narrative in order to justify his action of taking a knife as a weapon in the fight. But this evaluation cannot stand detailed comparison with other witnesses’ statements. Eyewitnesses are normally conscious of their impartial position in a case and thus seldom give evaluation in their narratives. The victims do not give evaluation or only express objective evaluation to assign the blame on the specific criminal actions.

4. Effects of different involvement on participant distribution

Participant analysis is introduced in Labov’s narrative study (2001) to understand how the responsibility of each action is distributed to each participant involved in a narrative story. For each activity the active causal agent ―y‖, patient ―z‖ and other participants ―x‖ are marked accordingly. Through the examination of different actors of each activity, we can get a general picture of the distribution of responsibility for the activities in the narrative. In the analysis of the participation, the responsibility of every action is distributed to each doer of the criminal event. And how each witness distributes the responsibility for the crime in his narrative would be quite clear through participant analysis. The participant distributions in the four witnesses’ statements are presented in Table 2 for a better comparison. The detailed participant analysis of each witness statement can be retrieved in Appendix 2, 3, 4, and 5.

TABLE 2 Participant distribution in witness statements in the malicious injury case witness participant suspect female male eyewitness Old

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label victim victim Wang suspect y 8 3 9 1 5 z 7 2 2 0 2 x 1 0 0 0 0 female y 4 5 0 1 0 victim z 0 1 0 0 2 x 0 0 0 0 0 male victim y 3 0 6 2 0 z 1 0 2 0 0 x 1 0 0 0 0 eyewitness y 4 2 3 7 0 z 2 1 4 0 0 x 0 0 0 0 1 Notes: ―y‖ represents the active causal agent of an action; ―z‖ represents the patient of an action and ―x‖ other participant in an action. Old Wang is also a By-standerW who is the female victim’s grandfather.

The participant distribution in the suspect’s narrative is quite different from those in the other witnesses’. When the female victim, male victim and eyewitness were reporting the criminal event in their narratives with themselves as involved members, they themselves appeared more times as active causal agent than anyone else in that they had to relate one action to another in order to form a coherent story. The suspect’s participant distribution forms a sharp contrast with the other three witnesses’; he described himself as active causal agent fewer times and as patient to criminal actions more times. That is, A person accused of committing the crime conducted fewer criminal actions than one of the victims (8<9), while simultaneously he plays the part of direct patient of criminal actions much more than the victims do in frequency (7>2). Though the two victims turned up more times as active agents than any other participants in their narratives, it is noticeable that they also appeared more times as patients to criminal actions in their own narratives. This kind of participant distribution accords more faithfully with the ―our understanding of causal relationships in the real world‖ (Labov 2001:7), in which suspects should participate as active causal agents more times and victims as patients to criminal actions more times. Thus the participant distribution in the suspect’s narrative totally violates this pattern. From the eyewitness’ perspective, the participant distribution presents us a more comprehensive view: the suspect performed 4 actions, while the female victim 2 actions and male victim 3 actions; the suspect is described as patient to 2 criminal actions, while the female victim as patient to 1 criminal action and male victim patient to 4 criminal actions. Generally speaking, the suspect carried out more criminal actions and the victims underwent more criminal actions. This kind of agent-patient distribution accords more with the common ideology about crime in which suspects perform criminal actions and victims get injured. This kind of agent-patient distribution in the eyewitness’ statement is totally different from that in the suspect’s statement. From the above analysis and comparison, it is clear that the suspect has taken the opportunity of free narrative to evade his responsibility for the crime and enhance the injuries he got by rearranging the participant distribution in his narrative. While the rest of the witnesses who should not worry about taking responsibility for the crime or taking much responsibility for the crime presented a more reasonable participant distribution in their narratives. Thus the more legal responsibility the witness is involved with, the more

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likely he would deliberately rearrange the participant distribution in his narrative.

5. Effects of different involvement on language strategies

The fake evaluation and the rearrangement of participant distribution in the suspect’s narrative give clues that the suspect had made other intentional transformations in his reconstruction of the criminal event except his distortion of temporal sequence of the narrative. The intentional transformations can manifest themselves on different levels; Labov in his narrative study (2001) has discovered that a suspect employed the techniques of deletion of events and exploitation of ambiguous constructions in order to minimize his responsibility for the crime. That is, besides distorting temporal sequence of the narrative and using evaluation, witnesses can employ other strategies to transform their narrative reconstruction of the criminal event in order to avoid taking responsibility for the crime as much as possible. The evaluation in [6] in the suspect’s narrative has been proven fabricated information by other witnesses’ statements, so is the action in [5] that describes the three members of the victim side had began to fight with him before he ran to take a knife to protect himself. The other witnesses have testified that the fight did not begin until the suspect started it by injuring the female victim with a knife. Also both narratives of the female victim and other eyewitnesses can prove the actions mentioned from [15] to [22] (see Appendix 6) in the suspect’s narrative are totally fabricated. These fabricated actions are used to accuse the male victim of hitting him with a knife and put the blame on the female victim for hitting him with a brick, and he even made up a story that his wife got hurt in protecting him from getting injured by the male victim. It is obvious that the suspect has fabricated a series of criminal actions and inserted them in his narrative to form a self-serving story so that he would not have to take full responsibility for what happened in the crime. A deletion of action between [6] and [7] is worth mentioning in the eyewitness’ statement in Appendix 1. If the action in [6] really happens, that is, the eyewitness and others stopped the male victim and the suspect, action in [7] would not have happened in which the suspect hit the male victim in the head with his knife. It is reasonable to assume that the eyewitness stopped the male victim and took away his shovel, which accidentally gave the suspect a chance to hurt the male victim with his knife. This deletion of the detailed action implies that the eyewitness, while trying to give an unbiased statement, still holds back some facts that might jeopardize his reliability or bring him trouble in this criminal case. The male victim, though did injure the suspect in the crime, never mentioned the specific action in his narrative. The two key clauses [6] and [10] in which this action might have happened did not reveal any information concerning this action. He held it until the police asked him the question ―Did you get to injure the suspect in this fight?‖ in the question-answer part after his narrative reconstruction. To this he answered ―Yes, I felt the knife hit him while we were struggling for it‖. Here the male victim, being afraid that he might have to take responsibility for the injury he caused to the suspect, deleted this information in his narrative clause sequence and even gave an ambiguous expression concerning this information when he had to answer the specific question raised by the police later.

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The suspect, the male victim and the eyewitness all employed certain language techniques when they describe the specific criminal actions in their narratives. The suspect added a series of fabricated criminal actions that have never happened in the crime in order to lessen his responsibility for the crime and enhance the injuries he suffered. The male victim and eyewitness deleted information concerning certain criminal action which might bring them trouble in the case. Thus the female victim is the only one who has not intentionally transformed her narrative and she is also the only one who does not have to worry about taking any legal responsibility for the crime. Therefore the more legal responsibility the witness is likely to take in a crime, the more language techniques he might adopt to transform his narrative to a direction of advantage.

6. Conclusion

Through the detailed comparison and analysis of the statements of the four witnesses in the malicious injury case, the general rule can be observed that the more responsibility the witness gets involved in a crime, the more transformations he might make in his statement. These transformations are exactly the effects exerted by witnesses’ involvement on their statements. These effects manifest themselves on three levels in witness statements: the narrative structure, the participant distribution and the language strategies employed by the witnesses. The effects on narrative structure can be further explored on the temporal sequence and evaluation part of the narrative. The relationship between the involvement and their effects on witness statement in this criminal case can be summed up in the following table:

TABLE 3 Effects of different involvement on witness statements Effects Narrative Participant Language strategy Temporal Evaluation distribution Fabrication Deletion Witness sequence Suspect + + + + - Female victim - - - - - Male victim + - + - + Eyewitness - - - - + Notes: ―+‖ refers to the existence of effects of a specific involvement; ―-‖ refers to nonexistence of effects. Though there is evaluation part in female victim’s narrative, she did not use it to transform the actual fact.

The suspect, being the one who is involved with the utmost responsibility for the crime, made a lot of transformations in his narrative reconstruction of the criminal event on every level mentioned above. The male victim distorted the temporal sequence and deleted one specific action in his narrative, being afraid that he might also have to take partial responsibility for the crime. The eyewitness deleted one specific action whose occurrence might degrade his credibility and bring him trouble. The female victim is not involved in any legal responsibility in the crime and did not make any transformation at all. This paper focuses on how the different involvement of witnesses affect their

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narrative reconstruction of the criminal event. Through detailed analysis, we can see that the effects exerted by different involvement can be manifested on three levels. And the more legal responsibility the witness is involved in, the more transformations he makes in his statement. This indicates that witnesses’ involvement plays a significant role in their own narrative stories about the criminal event, and therefore determines the accuracy and reliability of witness statements.

ACKNOWLEDGMENTS

This paper is supported by ―the Fundamental Research Funds for the Central Universities‖, Project No. 2014MS72.

REFERENCES

DU, JINBANG (2004): Forensic linguistics. Shanghai: Shanghai Foreign Language Education Press. LABOV, W. (1972): Language in the inner city. Philadelphia: University of Pennsylvania Press. LABOV, W. (1997): Some further steps in narrative analysis, in M. Bamberg (ed.) Oral versions of personal experience: Three decades of narrative analysis [Special Issue of the Journal of narrative and Life history]. Mahwah, NJ: Lawrence Erlbaum. LABOV, W. (2001): Uncovering the event structure of narrative. (appear in Georgetwon University Round Table 2001) Georgetown: Georgetown University Press. WANG, JINXI (2002): On statements in criminal cases. Beijing: People’ Public Security University Press.

APPENDICES

Appendix 1

No. suspect female victim male vicitm eyewitness [1] So Old Wang began to When my grandpa When I got home Li **’s wife Wang curse me and Liu ** were after I sprayed ** went out from quarrelling outside, pesticide in my field Old Wang’s house, I went out and went back home, and cursed that her my wife Wang ** grandpa was so old was quarrelling with and how Liu ** Liu ** at the aisle, I could tease him just entered the room to wash my face. [2] Old Wang and Wang ** He cursed at When I was washing I then dragged Wang (his granddaughter) began random after he got my face, I heard a cry **into Old Wang’s to curse with me at the drunk, and he outside from Wang house, I talked with aisle wasn’t reasonable **, so I came out to Li ** and Old Wang the yard to see what in Old Wang’s happened, Wang ** kitchen, I said, ―Old was leaning on the uncle, he was curing tricycle. you on the street, but I did not curse you. [3] Wang **’s husband Li ** So I cursed with So I went up to fight Wang ** was heard the curse and went him, and was with Liu **, I don’t nagging in the yard, over to curse with me too dragged home by know when I got lots of people were

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Liu Ke * and other injured in my face. watching persons [4] Then Li**, Wang ** and When I was talking I found Liu ** had a I heard people Old Wang – three of them with other persons, kitchen knife in his yelling outside, cursed with me at Old Liu ** took a hand, so I began to ―Xiao Hong has Wang’s house yard. kitchen knife from snatch away the knife been chopped his home and from his hands. down‖, I saw Wang chopped at my head ** lying down on the with it. ground [5] Later we three began the I immediately fell He was holding the Li ** went out from fight at Old Wang’s house unconscious handle of the kitchen the kitchen, and took yard knife. a shovel at the kitchen door. [6] I wasn’t strong enough to I had no idea who I grasped his wrist Other neighbors and fight with the three of dragged me into the with one hand, and I stopped Li ** and them room grasped the back of Liu ** the knife blade with another hand. At that time I was lying on the ground as I did that. [7] so I ran back to my house I was not clear what Finally Bad egg (Liu Liu ** chopped at Li to take a knife happened finally, Bin *) pulled me **’s face with the and I heard the rest away. knife of it from other persons. [8] When I took a knife from But I would not tell What happened after Liu ** and Li ** fell my house, Li ** already the things that I do he pulled you away? down on the ground, held a shovel in his hands. not know, what I those two fought have said is truth. with each other on the ground for a while [9] I chopped at Wang **’s I went into the room The neighbor Shao head with the knife to look into the ** and others and I mirror after I was drew them apart, and dragged away, I was seized the knife hurt on my face, and away blood was running down [10] And Li ** struck my pate so I came out with a The neighbor Xiao with the shovel shovel to hit Liu ** Feng took the knife away [11] and struck my eyes with Liu Bin * held my I held up Li ** to the shovel waist with his hands stop their fight and would not let go [12] I chopped at Li **’s face I don’t know who Liu ** sat on the with the knife took the shovel away ground, then they did not fight any more [13] My knife was seized by the neighbors trying to stop the fight there [14] I don’t know who did it. Notes: The Arabic numerals in square brackets represent the sequential clause in the narratives of the four witness statements.

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APPENDIX 2

Participant distribution analysis of the suspect’s statement passed by, said he cursed making follo told me would cursed cursed asked Li * had no Li * jokes wed to get not get me with to return money while us off his off the his money walking tricycle tricycle back

I y x y z y Bad Egg y Old Y y z y y z Wang Li * Z y z Wang ** z

curse cursed began ran back held a chopped struck struck chopped with with me the to my shovel at Wang my my at Li **’s me fight house to **’s head head eyes face with

too take a with with the the knife knife the shovel shovel I z z y y y z z y Old y Wang Wang** y y z Li** y y y y y y z Knife z x x Shovel z x x

seized by the took out chopped at got held a hold chopped at neighbors trying a knife my forehead faint brick, hit Li ** Guan **’s arm

to stop the fight with the my head with the knife there knife I z y z Wang** y Li ** y y z y Neighbors y Guan ** y z Knife z z x x Brick x

APPENDIX 3

Participant distribution analysis of the female victim’s statement asked determined to went cursed cursed chopped got had my sit in my out randomly, with at my unconscious no grandpa tricycle, made and is him head idea

it, teasing, unreasonable with the pulled down knife

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I y y y z y y Old z z Wang Liu ** (y) y y y Bad (y) Egg Knife x Tricycle z

APPENDIX 4

Participant distribution analysis of the male victim’s statement heard，came fight with found Liu ** had a (holding the grasped his wrist, out to the Liu **, kitchen knife in his hand, handle of the grasped the back of don’t snatch away the knife kitchen knife) the knife blade yard to see know

I y y y y Liu** y (y) y x Knife z z

pulled look into the mirror, was with a shovel held my waist and took the me away hurt in my face to hit Liu ** would not let go shovel away

I z y y z Bad Egg y y Liu** z Shovel x z

APPENDIX 5

Participant distribution analysis of eyewitness’ statement sit on followed, asked Liu ** to heard Liu ** came out dragged Old came to step down, wanted cursed Old of Old Wang ** Wang’s the house to push the tricycle Wang, Li ** Wang’s into Old tricycle gate into the yard) went into the house, Wang’s house cursed at house, the gate talked with

I y y y Liu** y Old x Wang Wang** y z Li** y Tricycle z

nagging heard, saw came out stopped Li chopped fell down on Wang ** lying from the ** and Liu at Li **’s the ground, on the ground kitchen, took ** face with fought a while a shovel the knife

I y y

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Liu** z y y Wang** y Li** y z z y Shovel z Knife x

drew them apart, seized took away the held up Li ** to sat on the ground, did that knife away knife stop their fight not fight any more

I y y Liu** z y Li** z z Neighbors y Xiao Feng y Knife z z

APPENDIX 6

Fabricated actions in the suspect’s narrative [15] Li ** said something, then he ran into his house and took out a knife [16] and chopped at my forehead with the knife [17] I got faint immediately. [18] When I was faint and lying down on the ground, Wang ** held a brick with her hands and hit my head. [19] When I went out from my house with the knife, my wife Guan ** followed me out [20] When Li ** was going to chop me once again after he had chopped at my forehead, Guan ** went up to hold Li ** and would not let him do that [21] Then Li ** chopped at Guan’s arm with the knife [22] After I got faint, I had no idea how that fight ended

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