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Chapter 1: Introduction

1.1. Aims of the study

Whenever a person thinks of law, (s)he will associate it with complication and a sense of

hesitation. In my opinion, they are quite reasonable to have such stereotypes.

The first reason is the language of law, as Tiersma (2000) said, is a separate language that

differs dramatically from everyday speech. He also added that legal language is decidedly

peculiar and hard to understand, especially for the perspective of the lay public. The oddity of

the language is due to many Anglo-Saxon, Latin and Norman French relics. Beside archaic

vocabulary, legal language is also famous for its lengthy and complex sentences. Tiersma

(2000) explained that the lengthy sentences are used because they can place all information on

a particular subject into a self-contained unit, so the ambiguity will be reduced.

The language of law has many other features, which made it becomes a kind of variety. The

followings parts will clarify this kind of variety.

The second reason lies in the fact that legal systems in different countries operate not the same

way. The two most common kinds of law are common and civil law. According to Wikipedia,

the free encyclopedia, common law is often referred to as "judge-made-law". It requires

judges to use their discretion in making judgments. It is used when no appropriate statute law

exists. A judges' decision may set a precedent, which must then be followed by all lower

courts when the facts of the case are similar (Retrieved from

http://en.wikipedia.org/wiki/Lawyer). Civil law has its roots in Roman law, Canon law and the

Enlightenment. The legal systems in many civil law countries are based around one or several

codes of law, which set out the main principles that guide the law. The main difference that is

usually drawn between the two systems is that common law draws abstract rules from specific

cases, whereas civil law starts out with abstract rules, which judges must then apply to the

various cases before them.

The difference in legal systems is also the main obstacle for foreigner to understand the legal

language of the other countries.

The study aims at contrasting systems of professional words denoting titles in legal systems of

Vietnam and of other countries, mainly the United States. From the contrast, the sameness and

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differences will be concluded, so I hope it will help Vietnamese learners in general and law

students in particular to have proper understanding and use of legal titles.

1.2. Methodology

In order to contrast legal titles in American legal system with those in Vietnamese legal

system, I will adopt contrastive method suggested by James C. (1980). The contrastive method

requires two steps:

- Step one: In this step, a full description of legal titles in American and Vietnamese

legal system will be made.

- Step two: After the descriptive process is the comparison stage. At this stage,

similarities and differences are inferred.

Beside contrastive method, qualitative method is used. Data from many sources related to the

topic are collected to serve for description and comparison stages.

1.3. Scope of the study

Since there are many titles in legal system, the study will choose to compare professional titles

in judicial branch and only some prominent titles are selected. It should be noted that the legal

system of the United States of America is chosen to compare with those of Vietnamese.

The main reason explained for the differences of the two legal systems is the legal culture of

the two countries and the study only deals with linguistic aspect.

1.4. Significance of the study

The study will be of great help for foreign language learners as well as for law students. It will

help them to have proper understanding of legal titles as they can use a checklist of legal titles

as a reference source.

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Chapter 2: Theoretical background

2.1. General description of legal language

Language, as Yon Maley (1994) said in his article The language of law, is the medium,

process and product in the various arenas of the law. Although the law system of Vietnam and

the United States of America is not the same, the legal languages of both systems, share some

characteristics as follows:

Legal language is often full of antiquated, archaic or unnecessary words. It is also famous for

its definiteness, preciseness and technical words. Legal language tends to spell things out

without painstaking attention to minute detail. In everyday language, in order to reach our

communicative purposes, we ordinarily try to leave the obvious unsaid, we take it for granted

that people know what we are thinking and understand what we mean. In a legal discourse,

nothing can be taken for granted, individual significant details must be stated explicitly.

Besides, the complexity of certain legal concepts demands a corresponding complexity in

sentence structure. In the legal language, the structure of a sentence can by surprisingly

complicated. Hardly can we find a simple sentence. In stead, we often find sentences with

qualifying phrases and dependent clauses.

In the next parts, we will examine in more detail the features of legal English and Vietnamese.

2.1.1. Characteristics of English legal language

When discussing language of law, Tiersma (2000) held the view that legal language is strange

and often hard to understand, especially from the perspective of the lay public. He even

classified legal language as a separate language. Lawyers, as he said, often use long, complex

and redundant sentences, conjoined phrases, impersonal instruction and arcane words or

phrases. The reason for the use of lengthy and complex sentences is explained as due to the

desire to place all information on a particular topic into one self-contained unit. Tiersma

(2000) said this tendency presumably reduces the ambiguity that might result if conditions on

a rule or provision are placed in separate sentences.

Tiersma (2000) also added that the language of law can sometimes be informal and versatile.

In discussing the language of law, Bhatia K. (1993) indicated that legal language encompasses

several usefully distinguishable genres depending on communicative purposes, the settings, or

contexts in which they are used to classify, the communicative events or activities they are

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associated with, the social or professional relationship between the participants bring to the

situation in which that particular event is embedded and a number of other factors. The result

is that the author classified the language of law into many subtypes, such as textbooks,

journals, cases, judgements, contracts, agreements, insurances, jury instructions.

When Gonzlez (1999) wrote about ways of gripping legal language, he also gave out some

features of the language that cause problems for learners , i.e. grammatical and syntactical

difficulties, terminological and phraseological conventions of the field, the differences that

hold between the legal systems, for instance, in the case of the English-Spanish language pair.

Furthermore, students of legal English are exposed to certain technical concepts that they

might not yet have come across in their Law course.

From discourse analysis perspective, legal text is considered from different levels. Llopis

Mara ngeles Orts (1999) divided legal text into two main different levels: Intra-discourse

level and Inter-discourse level.

The intra-discourse level of analysis includes the textual level and the discourse level. At

textual level, as far as lexical terms are concerned, the text under analysis shows the

appearance of typical features, namely technical terms or terms of art, i.e., words specific to

the genre ( Llopis (1999)),

With regard to syntactic features, the author stated that legal text often includes the use of

nominalization, passives, conditionals, use of unique determiners, parallel structures, as well

as a high frequency of prepositional phrases in unusual position.

The discourse level includes the strategies to achieve cohesion and coherence in the text

(Llopis (1999)).Coherence is achieved in the conceptual and formal obscurity, aimed at

being understandable to the legal specialist , to offer clarifications about various aspects of the

policy and make it unambiguous confusing and hermetic though it may seem to the layman

(Llopis (1999)).

From the inter-discourse level of analysis, the author noted that most legislation has to be

understood against a background of related law, mostly common law.

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Concluding remarks: The language of law is a kind of register, and legal English is a mixture

of many difference antique languages of the Celt, Anglo-Saxon, Dane, French and Latin. As a

special kind of register, it requires separate systems of vocabulary, structure and terminology

which cause considerable challenges for non-professional people.

2.1.2. Characteristics of Vietnamese legal language

Beside common features of legal language, Vietnamese laws have its own characteristics. The

language of law is considered to be the most typical example of scientific style, which is

characterized by precision and objectiveness. However, in order to reach the preciseness,

sometimes the documents are considered to be too complicated and hard for reader to

interpret.

Since Vietnamese itself is not clear in terms of time and tense, some legal documents in some

cases do not indicate time and tense precisely, which causes considerable problems when the

law is applied.

According to Anh Luu (2006), despite significant improvements, Vietnamese legislation work

is still weak resulting in the legal system being inadequate and unstable. Besides, the laws in

Vietnam are still inconsistent, so sometimes law terms in different document are not

consistent. That is the reason why it is required that law terms should be precise and popular.

(From Mt s vn v k thut son tho vn bn qppl)

There is a tendency that Vietnamese legal language uses short sentences with a logical

sequence.

For example, the term below is a lengthy sentence and difficult to understand. There are many

repetitions which can be eliminated. Such phrases as kinh doanh, hng ho, dch v are

repeated many times, and the term can be shortened. The example below is extracted form

website http://my.opera.com/mauvanban/blog/index.dml/:

The long form:

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" i vi hng ho, dch v kinh doanh c iu kin, cc t chc hoc c nhn khng

c php kinh doanh m kinh doanh, hoc c php kinh doanh m trong qu trnh kinh

doanh khng thng xuyn m bo cc iu kin qui nh cho loi hng ho, dch v , u

coi l hnh vi kinh doanh tri php, tu theo mc vi phm s b x l hnh chnh hoc b

truy cu trch nhim hnh s theo qui nh ca php lut hin hnh " (Article 15 Decision 36-

CP5 January 1995 of the Government) .

And the reduced form:

" Vic kinh doanh nhng hng ho, dch v c iu kin khi khng c php hoc

khng m bo cc yu cu qui nh i vi hng ho dch v u b coi l hnh vi kinh

doanh tri php v c th b x l hnh chnh hoc truy cu trch nhim hnh s tu theo mc

vi phm ".

From 90 words, the term has been reduced to 60 words but the content is unchanged.

Vietnamese legal language is often seen as colloquial language, as a result, some documents

are redundant. The main reason for the redundancy is that compilers negligence and they use

many synonyms of terms.

For example:

" Hp ng kinh t l s tho thun bng vn bn, ti liu giao dch gia cc bn k kt v

vic thc hin cng vic sn xut, trao i hng ho, dch v, nghin cu, ng dng tin b

khoa h c k! thut v cc tho thun khc nhm mc ch kinh doanh vi s quy nh r rng

quyn v ngh"a v ca m#i bn xy dng v thc hin k hoch ca mnh ".

(Article 1 Law on Economic Contract).

If the repetition of terms that have the same meaning is avoided, the article will be shortened,

thus, it will make the regulation more precise and easy to understand. In the example, the two

terms vn bn and ti liu have the same meaning.

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Concluding remarks: There are a lot of problems with Vietnamese legal language. The

reason may be due to the fact that our legal system is still new compared with hundreds of

years of countries like England and the United States. Our legal language will need more time

to evolve.

2.2. Overview of Vietnamese and American legal system

2.2.1. An overview of Vietnamese legal system

According to Vietnam Union of Science and Technology Associations website

(http://www.vusta.vn/English/law.asp), from early history, Vietnamese feudal administrations

were quite aware that in order to reign and administer the country they ought to set out their

law. The L, Trn and L dynasties followed that way, however, only until the Anterior Le

and then the Nguyn, was ruling by written law attached so much attention to. So far, the

Hng c Code (15th century) has been regarded a great and advanced code of the

Vietnamese feudal dynasties.

Compared to that of Europe and America, the building up of the law and governing over the

country by the law in Vit Nam were many centuries behind theirs; only when a new State -

the Democratic Republic of Vit Nam - came into existence, was building the new law

considered an important task of the State.

According to an article introducing legal system in Vietnam on website

http://www.thna.com/legalsys.htm of Tran. H. N. & Associates, legal system in Vietnam is

based on communist legal theory and French civil law, with major modifications and additions

from Marxist-Leninist ideology.

There are many similarities to the laws of former socialist countries, especially the former

Soviet Union. Still, some French influence also remains due to a long colonial period from the

19th into the mid 20th century.

From the end of the 80ies the Vietnamese legal system has undergone important changes

following the country's economic reform. Within only a few years, the National Assembly

enacted several laws and codes replacing decrees being the only legal basis for a long period.

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One important purport of the legislation in Vietnam is to cope with international standards in

order to promote international transactions from and into Vietnam.

However, Vietnamese law has not covered all fields of life or sometimes there is overlap

between the regulations of the laws. That is the reason why Vietnamese government is trying

hard to perfect Vietnamese legal system.

2.2.2. An overview of American legal system

According to Wikipedia - the online dictionary, the law of the United States was originally

largely derived from the common law of the system of English law, which was in force at the

time of the Revolutionary War. However, the supreme law of the land is the United States

Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and

treaties to which the U.S. is a part of. These form the basis for federal laws under the federal

constitution in the United States, circumscribing the boundaries of the jurisdiction of federal

law and the laws in the fifty U.S. states and territories.

In the United States, the law is derived from four sources. These four sources are

constitutional law, administrative law, statutes, and the common law (which includes case

law). The most important source of law is the United States Constitution. All other law falls

under, and is subordinate to, that document. No law may contradict the United States

Constitution. For example, if Congress passes a statute that conflicts with the Constitution, the

Supreme Court may find that law unconstitutional.

Notably, a statute does not disappear automatically merely because it has been found

unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes

have remained on the books for decades after they were ruled to be unconstitutional. However,

under the principle of stare decisis, no sensible lower court will enforce an unconstitutional

statute, and any court that does so will be reversed by the Supreme Court.

Federal law in the United States originates with the Constitution, which gives Congress the

power to enact statutes for certain limited purposes like regulating commerce. Nearly all

statutes have been codified in the United States Code. Many statutes give executive branch

agencies the power to create regulations, which are published in the Federal Register and

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codified into the Code of Federal Regulations. Regulations generally also carry the force of

law under the Chevron doctrine. Many lawsuits turn on the meaning of a federal statute or

regulation, and judicial interpretations of such meaning carry legal force under the principle of

stare decisis.

The fifty American states are separate sovereigns with their own state constitutions and state

governments. They retain plenary power to make laws covering anything not preempted by

the federal Constitution, federal statutes, or international treaties ratified by the federal Senate.

2.3. The structure of Vietnamese and American courts

2.3.1. The structure of Vietnamese courts

According to website http://www.country-data.com/cgi-bin/query/r-14709.html, Vietnamese

court can be seen as the diagram below:

Vietnam's judicial bodies are the Supreme People's Court, the local People's Courts at the

provincial, district, and city levels, the military tribunals, and the People's Organs of Control.

It must be added that there is another name of The Peoples Organs of Control, i.e. Supreme

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Peoples Procuracy of Vietnam. Under special circumstances, such as showcase trials

involving breaches of national security, the National Assembly or the Council of State may set

up special tribunals.

The Supreme People's Court is the highest tribunal and is charged with the supervision of

subordinate courts. As a court of first instance, it tries cases involving high treason or other

crimes of a serious nature; and as the highest court of appeals, it reviews cases originating

with the lower courts. Appeals are infrequent, however, because lower courts tend to act as

final arbiters.

Local people's courts function at each administrative level except at the village level, where

members of the village administrative committees serve in a judicial capacity. Proceedings of

local courts are presided over by hi thm nhn dn (people's assessors). The tribunal panels

at the first instance are composed of both judges and people's assessors (usually one judge and

two people's assessors).

The Supreme People's Organs of Control function as watchdogs of the state and work

independently of all other government agencies, although they are nominally responsible to

the National Assembly.

A judging council, made up of a judge and one or more people's assessors (lay judges),

determines guilt or innocence and also passes sentence on the convicted. The relevant people's

council appoints people's jurors, who are required to have high moral standards but need not

have legal training.

2.3.2. The structure of American courts

American courts can be diagrammed as follows, according to website

http://usinfo.state.gov/products/pubs/legalotln/index.htm

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The court system of the United States is more complex than that of Vietnam The Supreme

Court is the highest court of the United States, and the only one specifically created by the

Constitution. A decision of the Supreme Court cannot be appealed to any other court.

Article III of the Constitution states the basis for the federal court system: "The judicial Power

of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the

Congress may from time to time ordain and establish."

THE FEDERAL COURT SYSTEM

With this guide, the first Congress divided the nation into districts and created federal courts

for each district. From that beginning has evolved the present structure: the Supreme Court, 13

courts of appeals, 94 district courts, and two courts of special jurisdiction. Congress today

retains the power to create and abolish federal courts, as well as to determine the number of

judges in the federal judiciary system. It cannot, however, abolish the Supreme Court.

The Supreme Court

of the U.S.

Courts of Appeals -

- 12 Geographic-

based and one for

the Federal Circuit.

The U.S. Court of

Appeals for the

Federal Circuit

The Court of Military

Appeals

The 94 U.S.

District courts and

the specialized

courts, such as the

Tax Court

The Court of Federal

Claims, the Court of

Veterans Appeals, and

the Court of

International Trade.

The United States

Criminal Appeal Court

of Army, Navy,

Air Force, Marine

Corps, and Coast Guard

The court system of the United States

Federal problems

arising from states

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The power of the federal courts extends both to civil actions for damages and other redress,

and to criminal cases arising under federal law.

The Supreme Court has original jurisdiction in only two kinds of cases: those involving

foreign dignitaries and those in which a state is a party. All other cases reach the Court on

appeal from lower courts.

COURTS OF APPEALS AND DISTRICT COURTS

The second highest level of the federal judiciary is made up of the courts of appeals, created in

1891 to facilitate the disposition of cases and ease the burden on the Supreme Court. Congress

has established 12 regional circuit courts of appeal and the U.S. Court of Appeals for the

Federal Circuit. The number of judges sitting on each of these courts varies considerably

(from 6 to 28), but most circuits have between 10 and 15 judges.

Below the courts of appeals are the district courts. The 50 states and U.S. territories are

divided into 94 districts so that litigants may have a trial within easy reach. Each district court

has at least two judges, many have several judges, and the most populous districts have more

than two dozen. Depending on case load, a judge from one district may temporarily sit in

another district. Congress fixes the boundaries of the districts according to population, size,

and volume of work. Some of the smaller states constitute a district by themselves, while the

larger states, such as New York, California, and Texas, have four districts each.

SPECIAL COURTS

In addition to the federal courts of general jurisdiction, it has been necessary from time to time

to set up courts for special purposes. These are known as "legislative" courts because they

were created by congressional action. Judges in these courts, like their peers in other federal

courts, are appointed for life terms by the president, with Senate approval.

Today, there are two special trial courts that have nationwide jurisdiction over certain types of

cases. The Court of International Trade addresses cases involving international trade and

customs issues. The U.S. Court of Federal Claims has jurisdiction over most claims for money

damages against the United States, disputes over federal contracts, unlawful "takings" of

private property by the federal government, and a variety of other claims against the United

States.

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STATE COURTS

In America, each state is free to adopt any organizational scheme it chooses, create as many

courts as it wishes, name those courts whatever it pleases, and establish their jurisdiction as it

sees fit.

The state courts may be divided into four general categories or levels: trial courts of limited

jurisdiction, trial courts of general jurisdiction, intermediate appellate courts, and courts of last

resort.

Chapter 3: Contrasting professional titles in legal systems of the United States and

Vietnam

3.1.1. Main titles in Vietnamese judiciary

Although the judiciary of Vietnam consists of two bodies, i.e. the Peoples Court and the

Organs of Control, the system of titles is not complex. According to The 2004 Civil

Procedures Code, titles of the Peoples Court consist of chnh n, th$m phn, hi th$m

nhn dn, kim st vin, lut s, th k ta n. The power and duty of these titles are

defined in Vietnamese law like The 2004 Civil Procedures Code and Law on lawyers. We

will consider the roles of those titles in the following parts.

chnh n: According to The 2004 Civil Procedures Code , chief justice has the duty to

organize the work of resolution of legal procedures, make decisions assigning justices or

peoples jurors, court clerks. Chief justice also has the power to replace a judge, peoples

jurors or court clerk.

th$m phn has the power to prepare files of cases, make decisions summoning persons

participating in trials, participate in hearings trials.

hi th$m nhn dn have the duty to study files of cases prior to the commencement of a

trial. They also have the power to propose the chief justice or judge to issue necessary

decisions which fall under his or her authority. They participate in hearings of cases and vote

on issues.

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kim st vin have the responsibility to supervise the compliance of judgements and

decisions of the court with law in trials. They also participate in civil cases and have the power

of prosecution in criminal cases.

lut s: According to Law on lawyers, lawyers can participate in legal proceedings as a

representative for the detained, charged or accused person, or the person protecting legitimate

rights and interests of the victim, civil plaintiff, civil defendant or the person who has rights

and interests in the criminal case. A lawyer can participate in legal proceedings as the person

representation or protecting legitimate rights and interests of the parties in civil, economic,

labor and administrative cases. They also can participate in arbitration proceedings, provide

legal advices to clients or act as a representative for clients to perform law-related works.

th k phin ta has the duty to carry out the preparation for necessary professional

activities and prepare trial transcripts.

3.1.2. Main titles in American judicial branch

The North Carolina Wesleyan Colleges website http://faculty.ncwc.edu/toconnor/justitle.htm

offers a list of job titles related to the U.S. courts. However, not all jurisdictions may have

these positions, and most of them cannot be obtained by lateral entry simply with a college

degree (although some of them can). Here is the list:

Arbitrator, Assistant Administrator, Assistant Prosecutor, Background Investigator,

Bailiff, Bondsman, CJ Systems Planner, Court Clerk, Court Reporter, Courthouse Security,

Defense Attorney, Deputy Assistant, Diversion Specialist, Expert Witness, Grants

Administrator, Investigator, Judicial Assistant, Law Clerk, Lawyer, Legal Research, Manager,

Mediation Specialist, Paralegal, Parole Officer, Probation Officer, Process Server,

Sentencing Analyst, Victim Restitution

The website www.ncsonline.org offers a lot of jobs that relate to the court. Under each title,

there are specific positions. The number of sub-positions is very large. For example, under the

title Administrative Office of the Courts Administrators, there are State Court Administrator,

Deputy State Court Administrator, Regional Administrator, Legal Counsel, Judicial Conduct,

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Disciplinary Board Directors/Coordinators, Analysts Court, Services Information Technology

Administration, Finance Public Relations/Information, Administrative, Editor, Human

Resources.

Since there are a lot of titles related to the court, the paper only mentions main titles and they

will be contrasted with those in Vietnamese in terms of semantic field. The most basic titles

are: chief justice, judge, magistrate, juror, legal counsel, court attorney, attorney, court clerk

and prosecutor.

The role and duty of these titles are described specifically in websites of North Carolina

Wesleyan College and National Center of State Court.

chief justice: The Chief Justices role is to set the agenda for the weekly meetings where

the justices review the petitions for certiorari, to decide whether to hear or deny each case.

Power of the Chief Justice has significant influence over the direction of the court. The Chief

Justice also writes an annual report about the federal judiciary, which he or she presents to

Congress.

By virtue of his position, the Chief Justice is the chair of the Judicial Conference and the

Federal Judicial Center and oversees the Administrative Office of the U. S. Courts. These

organizations monitor different aspects of the federal judiciary. The Chief Justice is also

honored with a position on the board of the National Gallery of Art, the Smithsonian

Institution, and the Hirshorn Museum.

Each court in the federal system has a chief judge who, in addition to hearing cases, has

administrative responsibilities relating to the operation of the court. The chief judge is

normally the judge who has served on the court the longest.

Magistrate is actually a term refer to a kind of judge at district level. The role of magistrate

is to do legal research activities at the trial court level. The work of magistrate involves

considerable interpretation and judgment in the analysis of legal issues in administrative law

and the areas mentioned above. (S)he performs a variety of judicial duties in judicial system

including deciding the merits of cases, hearing and evaluating evidence and witness

credibility, analyzing laws and rules, making findings of fact and conclusions of law and

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issuing oral or written decisions and orders to resolve cases. (S)he also provides administrative

direction for the operation of a judicial division including supervisory accountability for

division staff, volunteers or interns.

Judge: Judges duty is to perform professional judicial duties in interpreting and applying

the local, state and federal laws and manage the activities of the operating of the court. (S)he

also presides over a variety of hearing including criminal misdemeanor and traffic

arraignments, driving and curfew arraignments, criminal non-jury trials, and pre-trial

conferences; Review requests for continuances; grant or deny requests.

Counsel: The duties of a counsel are to provide technical legal advice to managers,

supervisors and employees in order to avoid or minimize legal liability, to conduct legal

research, interprets laws, rulings, and regulations for clients. (S)he also has to prepares legal

briefs, develops strategy, arguments, and testimony in preparation for presentation of case.

Attorney: This position entails reviewing documentation, investigating information in

preparation for hearings, conducting hearings, and preparing reports, minutes, reviews and

legal memorandum. The attorney also has to analyze policies and procedures and draft

requested changes to rules and regulations. (S)he may have to conduct legal research; draft

presentments and committee reports; prosecute matters at disciplinary hearings; appear for

oral argument before the Supreme Court and prepare ethics. Additional duties will include the

preparation of the Annual Report; and assisting with staff support.

Jury and Juror: In the law, a jury is a body of citizens in a common law jurisdiction

which decides questions of fact in a legal case. The members of a jury are known as jurors.

In the US, the term can refer to a grand jury which issues an indictment or a petit jury which is

present at a trial. In the United States, England and Scotland, defendants in most serious

criminal cases have a right to trial by jury, although in practice most criminal actions in the

US are resolved by plea bargain.

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Juries are also used in many civil cases in the United States, and the United States Constitution

explicitly protects the right to a jury in civil as well as criminal cases. In criminal cases, the

right to a jury trial belongs to the defendant; if the defendant decides he or she is likely to do

better without a jury, the prosecution cannot insist on one.

The jurors then hear the cases presented by both the defense and prosecution, and in some

jurisdictions a summing-up from the judge. They then retire as a group to consider a verdict in

secret, which they must reach unanimously in US criminal cases. On the rare occasions when

no unanimous decision can be reached by the jury, a mistrial is declared, and the case must be

retried with a newly constituted jury.

Prosecutor: The prosecutors duty is presenting the case against an individual suspected of

breaking the law in a criminal trial. However, in the United States, attorney is often used in

stead of prosecutor.

Court clerk: The clerk maintains authority over financial performance, staffing, budgets,

and efficient caseload processing; monitors and performs procedures to ensure compliance

with statutory requirements, the needs of the Court, other criminal justice agencies, and the

public, consistent with sound management principles. In addition to management

responsibilities, the clerk often has to assist with direct customer service tasks as needed to

provide timely public service.

3.2. Contrasting professional titles in legal systems of the United States and

Vietnam

From the description process we have made, in the next part, we will contrast the most

prominent titles the judiciary of Vietnam and the United State one by one.

3.2.1. The position of judge

It can be said that there is great difference between English and Vietnamese in system of terms

denoting legal titles in English and Vietnamese.

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In Vietnamese legal system, for judge position, beside the term thm phn, there is one

synonym, i.e. quan ta. According to Vietnamese dictionary, quan ta means a person

who hears cases in court, and it is a synonym of thm phn. Actually, quan ta is often

used in the old days, nowadays it has colloquial meaning and often appears in articles or

reports, not in legal documents.

An example below will show us about the use of the two terms. The example is an extract of

an article on Vneconomy, an online newspaper:

Khi quan ta mt qun i kin...

Ngy 25/6, b Thm phn Judith Bartnoff ra bn n cui cng i vi v kin l lng

nht sut hai nm qua M v thu ht s ch ln ca d lun: Ch tim git i

Custom Cleaners khng vi phm lut bo v ngi tiu dng ca thnh ph.

ng Roy Pearson, Thm phn Lut Hnh chnh th Washington DC. gi qun tim git

i Custom Cleaners nh sa. Qun tht lc. Vi ngy sau, ch tim a qun ra tr, Pearson

ni khng phi qun ca ng v do kin. ().

In the headline, the term quan ta is used, however, in the article, the other word thm

phn is employed. The explanaion for the difference is that, the term in the headline is often

used colloquially and it has humorous sense when it is combined with other words mt

qun, thus it has the effect of attracting readers. The term thm phn is used twice in the

content of the article with a serious sense to denote a title in the courts of America.

In the language of judicial branch of the United States, we have at least three other words

denoting the same position as thm phn. Although the word magistrate is not very

common in America, it does exist and it denotes a judge at district level and he only solves

less serious cases. Justice is a synonym of judge, and it implies that judge is the one who

brings justice to the society. The word jurist is a hypernym of judge. According to

Websters-online dictionary, it has two meanings, i.e. a legal scholar versed in civil law or the

law of nations or a public official authorized to decide questions bought before a court of

justice.

19

The official title of magistrate is "United States Magistrate Judge." A United States

Magistrate should be addressed orally and in writing, as "Judge _______," to be consistent

with the position's judicial role and official title as prescribed by law. Although some state

courts have a judicial officer called a "magistrate," that title as applied to a United States

Magistrate Judge is obsolete. To address these judges simply as "Magistrate" is akin to

improperly addressing a Lieutenant Colonel as "Lieutenant," or a Bankruptcy Judge as

"Bankruptcy."

According to website http://www.ilsd.uscourts.gov/proudmisc.html, the difference between

the two terms magistrate and judge is that while district judges are life-tenured judges

nominated by the President and confirmed by the Senate, magistrate judges are fixed-term

judges appointed by district judges for eight-year renewable terms via a merit selection

process.

Within guidelines set by the Congress, the judges in each district court establish the duties and

responsibilities of their magistrate judges. The legislation permits a magistrate judge, with the

consent of the involved parties, to conduct all proceedings in a jury or nonjury civil matter and

enter a judgment in the case and to conduct a trial of persons accused of misdemeanors (less

serious offenses than felonies) committed within the district, provided the defendants consent.

There are still many other words that have semantic relations with the two titles magistrate

and judge. For people that do not have knowledge of law, they may not fully understand the

differences of the meaning of magistrate, jurist, justice and judge. According to the

website http://www.websters-online-dictionary.org, the four words have one common

meaning, i.e. to denote an official authorized to decide questions bought before a court of

justice. However, each word has its own aspects of meaning. The term judge can replace

the two words magistrate and justice. In fact, as we have known, magistrate in the

America is appointed by district judge and has limited power, only solve less serious criminal

and civil cases. The word justice has many other meanings beside to be the synonym of

judge. The term jurist denotes someone who studies, develops, applies or otherwise deals

with the law.

20

We can analyse the four words semantically like this:

In

judicial

opinion

authority to

administer and

enforce law,

involved with

judiciary matters,

i.e. a justice of the

peace

Level of

administrative

working

Working in

specific

office

Popular

term in the

U.S.

Magistrate x x x x 0

Judge x x 0 0 x

Jurist x 0 0 0 x

Justice x x 0 x x

* In Vietnamese judiciary, the judge who has the highest power in the judiciary is called

chnh n and at all levels of courts (People's District Courts and the Supreme Court) the

head of the court is also called chnh n. However, in American judiciary, chief justice is

only used to denote the head person of the Supreme Court. Each court in the federal system

has a chief judge who, in addition to hearing cases, has administrative responsibilities

relating to the operation of the court. The chief judge is normally the judge who has served on

the court the longest. From the contrast, we can see the difference in the way the two system

name the head person of each court level

The term chnh n has a synonym, which is an old word called Chng L. Nowadays,

the term is not usually used in legal documents, it is often used in newspaper.

For example, the VOA news has an article that contains the term:

Bom n ti Venezuela, st hi ph Chng L Danilo Anderson.

Venezuela cho hay mt cuc tn cng bng bom st hi Ph Chng L Danilo Anderson

ca nc h.

21

Hm nay, cc gii chc Venezuela ni vi i Ting Ni Hoa K rng xc nh c

ch c ch n l xc ngi chy en tm thy trong chic xe chnh l xc ca Ph Chng L

Anderson. ().

Concluding remarks: The term judge in American legal system is equivalent to thm

phn in Vietnamese. In Vietnamese, thm phn has one synonym, quan ta, and they

have the same meaning in legal language. The only difference is that, the former is used

officially in legal document while the latter is an old word, and now its semantic meaning has

derived and often used in colloquial language. In American English, judge has three

synonyms, magistrate, jurist and justice. Among these words, only magistrate causes

problem for people to understand. It is a judge at district level and has limited power

compared with a judge.

In another words, it can be said that, the synonyms in Vietnamese has semantic difference

while those in English differ in functional nature denoted in law.

The term chnh n has one synonym, chng l, which is an old word. Due to the

difference of the two legal systems, the term chnh n in Vietnamese is equivalent to chief

justice and chief judge in the United States.

3.2.2. The position of prosecutor

According to Wikipedia online dictionary, prosecutor is the chief legal representative of the

prosecution in countries. The prosecution is the legal party responsible for presenting the case

against an individual suspected of breaking the law in a criminal trial.

In the United States, the director of offices that are responsible for prosecution of charges may

be known by any of several names depending on the legal jurisdiction (e.g. County Attorney,

Prosecuting Attorney (in Michigan, Indian, and West Virginia), County Prosecutor, State

Attorney, State Prosecutor, Commonwealths Attorney (in Virginia and Kentucky), District

Attorney, District Attorney General (in Tennessee), City Attorney, City Prosecutor or U.S.

Attorney) and may be either appointed or elected. In order to be appointed prosecutor,

nominees must be lawyers.

22

So in America, the term prosecutor has one synonym called attorney.

As we have mentioned in the previous part, in Vietnamese legal system, there is a separate

organ to initiate criminal cases and the officer who is responsible for the charges is called

ki!m st vin. The term ki!m st vin is sometimes translated as procurator and

sometimes as prosecutor.

According to Websters online dictionary, procurator is a person authorized to act for

another. However, there are still many documents employing the term procurator to denote

the person who has the power of prosecution. Thus, in my opinion, when we translate the term

ki!m st vin into English, the two words prosecutor and procurator are acceptable.

Concluding remarks: The word ki!m st vin in Vietnamese legal system is equivalent to

three words in American legal system, prosecutor, procurator and attorney

3.2.3. The position of lawyer

In Vietnam, lut s is a general term to denote people who give legal advice for people,

represent and other people in courts. However, gradually, there are other terms to denote

specific functions of lawyers. For example, there is an article named Ngh lut s kinh

doanh Vit Nam on website http://www.nclp.org.vn/News/ykls/2005/06/779.aspx which

requires that there should be other terms to call lawyers in Vietnam.

According to T" i!n ting Vit, the two words thy ci and trng s are both obsolete

words, they are synonyms of lut s.

In Vietnamese modern society, the former is often used colloquially with ironical meaning.

For example, the term thy ci is used in the title of the following article to pillory a man

who was a lawyer that did bad things.

Hon phin ta xt x thy ci L Bo Quc

Sng 19/7, TAND t%nh Bnh D&ng a ra xt x s& th$m v n L Bo Quc (nguyn lut

s Vn phng Lut s Ba nh, H Ni) phm cc ti: l'a o chim ot ti sn; lm dng

23

tn nhim chim ot ti sn; trn kh(i n&i giam gi; a hi l; lm gi ti liu c& quan, t

chc v L c Tun (ti x ca Quc) v ti a hi l ().

(From website http://www.vnmedia.vn/newsdetail.asp?CatId=22&NewsId=96688)

The man named L Bo Quc is a lawyer, but he exploits the title to trick people, so he is

called thy ci.

The second synonym, trng s now rarely appears in Vietnamese society.

For lay people, there is another term that may cause confusion for them, i.e. lut gia. They

may use the two terms lut s and lut gia interchangeably. According to T" i!n ting

Vit (1988), the former means people who defend other persons in court or give legal advice

and the latter means a person who study law. Thus, in some cases, lut s can be called lut

gia, but lut gia can not be used to denote lut s.

Nguyen, Tuyet Nhung (2006), in her article about the term lut s in Vietnamese, said that

we can classify lawyer in two ways, according to the functions of the lawyer and fields of

law in which the lawyer involves in . According to the functions of the lawyer, there are two

types, i.e. lawyers who give legal advice and lawyers who plead cases in court. Basing on the

fields of law that lawyers involve in, we have many types of lawyers, such as environmental

lawyer, family lawyer, commercial lawyer, intellectual property lawyer... and for lay people, it

seems easy for them to understand as there are specific words to denote functions of the

lawyers.

In American English, for the word attorney, there is distinction between attorney-in-fact

and attorney-at-law. Wikipedia, the online dictionary, gives definitions of the two words as:

An "attorney-in-fact" is akin to an agent who acts on behalf of another person, typically with

respect to business, property, or personal matters. Such an agent does not have to be licensed

to practice law and may not need to have any license at all. By contrast an attorney-at-law, or

lawyer, is a person trained and licensed by a relevant jurisdiction to practice law: to represent

clients in legal matters and to give legal advice. In the United States, the term attorney,

standing alone, generally refers to this meaning rather than "attorney-in-fact".

There are many other synonyms of including "advocate," "lawyer," barrister," "civil law

notary", "solicitor, advocator, counsel, counselor, counselor, counselor-at-law.

However, the paper will only analyse the most common words that are often used in America

24

and cause problems for language users, i.e. attorney, lawyer, barrister, solicitor, counsel, and

advocate.

If we distinguish the six words attorney, lawyer, barrister, solicitor, counsel, advocate

basing on the functions of lawyers, the result is that only solicitor does not plead case in

court.

Among the six terms, some of them are particularly popular language societies, for example,

attorney is often used in the United States, solicitor and barrister are used in England.

Beside one joint sense of meaning, the term attorney has another meaning in the United

States, i.e. it means prosecutor.

Here is the semantic analysis of the six terms:

Licensed by the state, give advice and prepare legal document

Plead case

in court

Especially

popular in

the U.S.

Especially

popular use

in England

Especially

popular in

Scotland

Often work

for

company

Attorney x x x 0 0 0

Lawyer x x 0 0 0 0

Barrister x x 0 x 0 0

Solicitor x 0 0 x 0 0

Counsel x x x x 0 x

Advocate x x 0 0 x 0

Compared with English, the term lut s in Vietnamese does not have many synonyms to

denote specific fields that the lawyer specializes in, which is the result of relatively short

history of lawyer career in Vietnam. We will spend some time to consider lawyer profession

in the United States and. Vietnam.

According to website http://usinfo.state.gov/products/pubs/legalotln/index.htm, the training of

attorneys and the practice of law have evolved over time in the United States. Today

American lawyers practice in a variety of settings and circumstances.

25

In the early days, during the colonial period in America (1607-1776), there were no law

schools to train those interested in the legal profession. After the American Revolution (1775-

83), the number of lawyers increased rapidly, because neither legal education nor admission to

the bar was very strict. The apprenticeship method continued to be the most popular way to

receive legal training, but law schools began to come into existence.

As the demand for lawyers increased during the late 1800s, there was a corresponding

acceleration in the creation of new law schools. In the 20th century, the number of people

wanting to study law increased dramatically. The number of lawyers in the United States has

increased steadily over the past half century and is currently estimated at more than 950,000.

America's lawyers apply their professional training in a variety of settings. Some

environments are more profitable and prestigious than others.

In Vietnam, according to Phan Huu Thu (2001), before 1930, French colonialists did not allow

Vietnamese people to work as lawyers. On 25 May 1930, the colonialist issued a decree to

establish lawyer association and Vietnamese people were allowed to join in. During war time,

there were not much opportunities for lawyer career to develop. There are three landmarks for

the development of lawyer career in Vietnam, i.e. the law on lawyer issued in 1987, 2001 and

2007. According to an article WTO membership illuminates weakness of local lawyers on

website http://english.vietnamnet.vn/reports/2006/08/599583, the country currently has 819

organisations offering legal services, 149 branches and 653 law offices. The numbers fall well

short of actual need. Lawyers mainly work in large cities, while mountainous provinces like

Dien Bien and Lai Chau have far too few lawyers to even establish their bar associations.

According to the report, the ability of these lawyers falls short of the requirements of judicial

reforms and international economic integration. Other weaknesses in an unclear and

incompetent legal system, the lack of lawyers specialized in the fields of investment, business,

and trade, as well as the inability to work with court procedures is pose serious problems for

Vietnamese lawyers.

26

From the history and development of lawyer career in Vietnam and in the United State, it is

easy to see that lawyer is still a new career in Vietnam and it is still in developing ways

compared with the developed environment in the United States.

Concluding remarks: The term lawyer has many synonyms in English. The Websters

online dictionary gives a list of twenty-one words that can replace the word lawyer:

attorney, legal counsel; counsel, counsellor, counsellor at law, attorney at law; jurist, legist,

civilian, pundit, publicist, juris consult, legal adviser, advocate; barrister, barrister at law;

King's or Queen's counsel; silk gown, sergeant-at-law, bencher; tubman.

The variety in the ways to express the word lawyer in English shows the professionalism of

lawyer as a career in the United States. Nguyen Tuyet Nhung (2006) concluded that the

development of legal professions and the social structure of lawyer are well-reflected in

language system.

3.2.4. The position of juror

hi thm nhn dn is somewhat equivalent to jurors in American legal system. However,

the two titles are not totally the same in terms of functions that defined in laws of the two

countries.

According to Wikipedia, the online dictionary, in the U.S. legal system, there is distinction

between two types of jury, the grand jury and petit jury. When used alone the term usually

refers to the latter. The grand jury is a group of men and women convened to determine

whether there is probable cause to believe that a person has committed the federal crime of

which he or she has been accused. Petit jurors are chosen at random from the community to

hear evidence and determine whether a defendant in a civil trial has liability or whether a

defendant in a criminal trial is guilty or not guilty. Federal rules call for 12 jurors in criminal

cases but permit fewer in civil cases. The federal district courts generally use six-person juries

in civil cases.

According to website http://usinfo.state.gov/products/pubs/legalotln/index.htm, jury selection

is a rather complicated process. A jury is made up from a list of citizens living in the

27

jurisdiction of the court. When selected, being a juror is, in principle, compulsory. However,

jurors can be dismissed for several reasons and many people are released from serving on a

jury. People can, for instance, claim hardship if they take care of their children, or claim to be

biased.

In Vietnam, hi thm nhn dn at each level are lay people elected by the People's Council

of the same level at the recommendation of the Vietnam Fatherland Front and could be re-

elected.

According to the book S# tay hi thm (2000), hi thm nhn dn only participate in

first instances. hi thm nhn dn are those who have good qualities, such as loyalty to the

country, good moral, sincerity, having legal knowledge can be elected as assessors. In

adjudication, judges and peoples assessors are independent and only comply with the laws is

a constitutional principle. However, in reality, they are only relatively independent from each

other due to various reasons. Under Vietnamese Constitutions, jurors were elected for terms of

office that corresponded to that of the electing state organ.

From the description in the previous parts, we can see the differences between hi thm nhn

dn and jurors are as follows: hi thm nhn dn in Vietnam are not allowed to

participate in appellate trials and in first instances, they can give specific verdicts. In the U.S.

legal system, jurors can participate in appellate courts, but they just have power to decide

whether there is probable cause for the accused to be subjected to a formal trial, not to give

specific sentences.

In Vietnamese legal documents, the term hi thm nhn dn is sometimes translated as

peoples assessors. Sometimes, the term peoples jurors are used.

Concluding remarks: Jury in American legal system is not the same as hi thm nhn dn

in Vietnamese. Jurors in American work somewhat differently from Vietnamese peoples

assessors. Grand jurors in American can decide if the accused would be tried in criminal cases.

The way of selecting jurors randomly among voters in the United States is also different from

the way peoples assessors in Vietnam are elected .

28

However, in some aspects, they serve the same purposes, for preserving freedom. As the

website http://www.cato.org/dailys/12-09-98.html writes: The purpose of trial by jury, as the

Supreme Court itself has noted, is to prevent "oppression by the government." To perform that

role, jurors must act independently and conscientiously, and they must be prepared to "just say

no" if they believe that a conviction would be unjust. Nothing else satisfies the purpose of trial

by jury, or provides the protection to liberty that the Founders intended to provide in our Bill

of Rights.

Since we have known the nature of the two terms, when we encounter in a specific context, we

will have right understanding of them.

3.2.5. The position of court clerk

In Vietnamese legal system, there is not much to say about the position of th k phin to.

The equivalent position in American legal system is clerk of the court. Wikipedia, the online

encyclopedia states that clerk of the court is an officer of the court whose responsibilities

include maintaining the records of a court. However, there are other positions that may cause

problems for foreign language learners, i.e. judicial secretary, judiciary secretary or law

clerk.

According to website http://www.ncsconline.org/D_KIS/jobdeda/Jobs_Secretary(20).htm, a

judicial secretary has the duty to screen and route telephone calls; refer individuals to

appropriate division personnel or federal, state, county or local agencies; answer inquiries

from the public, employees, judges, complainants, subordinates or visitors; sort and route

correspondence and mail; operate a personal computer for information processing; compose

routine correspondence; compile statistical data on workload volume; record information into

computerized record keeping; file records ().

The website describes duties of a judiciary secretary as follows: The Judiciary Secretary is

responsible for providing confidential secretarial and administrative clerical support. (S)he

will prepare correspondence, memoranda, and reports; schedule meetings and appointments;

29

screen incoming calls and visitors; respond to inquiries posed by employees, clients and a

diverse customer service population; perform other related duties as assigned.

Wikipedia, the online dictionary notes that, the court clerk is not to be confused with a law

clerk, as the former is essentially a secretary for the court, while the latter is an attorney who

assists the judge in making legal determinations.

Concluding remarks: th k phin to in Vietnamese legal system is equivalent to clerk

of the court in American English. The term in Vietnamese can be confused with other terms

in American legal system like judicial secretary, judiciary secretary or law clerk.

30

Chapter 4: Implications for translating and teaching and learning English for law

4.1. Implications for translating legal documents

4.1.1. Theories of translation

Translation has long been the theme that attracted people study language to write about.

According to Abdellah, S. A. translation is ultimately a human activity which enables human

beings to exchange ideas and thoughts regardless of the different tongues used. Translation is,

in Enani's (1997) view, a modern science at the interface of philosophy, linguistics,

psychology, and sociology.

In Abdellahs opinion, the ideal translation will be accurate as to meaning and natural as to the

receptor language forms used. The author lists three criteria that make an ideal translation:

Accurate: reproducing as exactly as possible the meaning of the source text.

Natural: using natural forms of the receptor language in a way that is appropriate to the

kind of text being translated.

Communicative: expressing all aspects of the meaning in a way that is readily

understandable to the intended audience.

He cited from Larson (1998) that translation consists of studying the lexicon, grammatical

structure, communication situation, and cultural context of the source language text, analyzing

it in order to determine its meaning, and then reconstructing this same meaning using the

lexicon and grammatical structure which are appropriate in the receptor language and its

cultural context.

Diagram from Larson l998, p. 4

31

That is some viewpoints of translation. In the next part, we will consider opinions about legal

translation. According to Capellas-Espuny G. (1999), legal translation requires very specialist

knowledge; the wording for this type of document is very exact and can have no ambiguity.

Getting the translation of a legal document wrong can cause confusion, frustration, undue

delay and a huge cost.

Among the problems posed by legal translation, she holds the view that terminological

equivalence is one of keen current interest. It is a well-known fact that legal translation as such

poses many problems due to the differences in legal systems from one country to another. And

laws system of Vietnam and the United are not an exception.

4.1.2. Some remarks on the translation of legal titles from English into Vietnamese

and vice versa

In the translation of document about American politics, society and culture, Introduction to the

U.S. Legal System, which is introduced by the United States Embassy in Vietnam, there are a

lot of terms related to legal titles.

In the document, there are eight chapters which are adapted with permission from the book

Judicial Process in America, 5th edition, by Robert A. Carp and Ronald Stidham, published

by Congressional Quarterly, Inc. Copyright 2001 Congressional Quarterly Inc. In Chapter

4: Lawyers, Litigants, and Interest Groups in the Judicial Process, there is one part named

Government Attorneys in the Judicial Process, in Vietnamese version, it is translated as Cc

lut s ca chnh quyn trong th tc t tng. In my opinion, attorney in this case is not

one hundred percent means lut s in Vietnamese. As we have known in the previous part,

the term attorney is particularly popular in the United States. It has more than one meaning,

lawyer and prosecutor. And in the next part, there are titles as follows: Federal

Prosecutors, Prosecutors at the State Level, Public Defenders, Other Government Lawyers,

The U.S. Department of Justic., U.S. Solicitor General, State Attorneys General.

Thus, in this case, I think attorney in Government Attorneys in the Judicial Process

should be translated as lut s v cng t vin.

32

There is another case that in my opinion, there should be some changes when the phrase U.S.

Solicitor General is translated as Tng C vn php lut Hoa K.

According to Wikipedia online-dictionary, solicitor has many meanings: A solicitor is a

type of lawyer in many common law jurisdictions, such as the United Kingdom, Hong Kong,

Republic of Ireland, Australia, New Zealand and Canada, but not the United States. In most

common law countries the legal profession is split between solicitors who represent and advise

clients, and a barrister who is retained by a solicitor to advocate in a legal hearing or to render

a legal opinion.

The online dictionary added: For legal usage, in some U.S. states, a "solicitor" may be the

chief legal officer of a city or town for example, a "town solicitor," although cities in

other states simply have "city attorneys." Some counties and states as well as the federal

government have an official known as a Solicitor General who is actually more of an advocate

than a solicitor in the traditional British sense. In South Carolina the term "solicitor" applies to

a circuit prosecutor. In Georgia a county solicitor general is responsible for prosecution of

misdemeanor offenses. Historically, Georgia solicitors general were state prosecutors. Today,

that office is known as district attorney.

It can be concluded that, solicitor has two meanings, an advocate (lawyer who give legal

advice) and prosecutor.

In order to decide whether solicitor in this phrase means an advocate or prosecutor, we

will check the whole context again:

U.S. Solicitor General.

The solicitor general of the United States, the third-ranking official in the Justice Department,

is assisted by five deputies and about 20 assistant solicitors general. The solicitor general's

primary function is to decide, on behalf of the United States, which cases will and will not

be presented to the Supreme Court for review. Whenever an executive branch department or

agency loses a case in one of the courts of appeals and wishes a Supreme Court review, that

33

department or agency will request that the Justice Department seek certiorari. The solicitor

general will determine whether to appeal the lower court decision.

The noteworthy thing here is that . The solicitor general's primary function is to decide, on

behalf of the United States, which cases will and will not be presented to the Supreme Court

for review. It means that it is the function of a prosecutor.

Thus, in this case, U.S. Solicitor General must be translated as Chnh n Hoa K, not

Tng C vn php lut Hoa K.

In other cases, I think the translation version is quite accurate. For example, the phrase State

Attorneys General is translated as Cc tng chng l ca bang. Let us consider the

context:

Each state has an attorney general who serves as its chief legal official. In most states this

official is elected on a partisan statewide ballot. The attorney general oversees a staff of

attorneys who primarily handle the civil cases involving the state. Although the prosecution of

criminal defendants is generally handled by the local district attorneys, the attorney general's

office often plays an important role in investigating statewide criminal activities. Thus, the

attorney general and his or her staff may work closely with the local district attorney in

preparing a case against a particular defendant. ()

However, in this case, the translator uses an old word, ch)ng l, which may cause problem

for lay people, especially young Vietnamese people. It would be better if it is renamed as

Chnh n.

There is another term in English that makes me think when it is translated in Vietnamese, i.e.

magistrate. According to the definition of magistrate, the position does all kind of tasks

like a judge. According to website www.uscourts.gov/understand03/content_5_0.html - 18k,

the role of Magistrate Judges is to handle a wide array of federal civil and criminal cases

nationwide. A sampling of the judicial functions performed by Magistrate Judges

demonstrates the potential breadth of their authority: Presiding at criminal misdemeanor jury

trials by consent of the parties and entering judgments; presiding at criminal misdemeanor jury

34

trials by consent of the parties and imposing sentences; retrial case management in complex

civil cases; conducting preliminary proceedings in all criminal cases ().

As we have seen, magistrates role is similar to a judges ones, however, the title is not the

same as judge as it is appointed by district judges. I think when we have to translate the

word, we should translate as thm phn ht, thm phn cp ht or thm phn cp qun.

In chapter 2 of the document Introduction to the U.S. Legal System, HISTORY AND

ORGANIZATION OF STATE JUDICIAL SYSTEMS, the term magistrate is translated

as thm phn ha gii v ti!u hnh. That way of translation is a bit long and may cause

difficulties for people to understand.

There are not many documents in Vietnamese related to legal titles translated into English. If

available, the documents are comparatively simple.

In The 2005 civil code and The 2004 civil procedures code, legal titles mentioned are

quite simples: judge, chief justice, peoples juror, prosecutor, court clerk and lawyer. Even in

the draft of Law on lawyers, no synonyms of lawyer appear. It is quite understandable as

lawyer is the most common term and it will make the document easy to understand. Even

Model Rules for Lawyer Disciplinary Enforcement of American Bar Association also use

only the term lawyer.

In an article introducing Decree No. 28/2007/ND-CP dated 26/02/2007 of the Government

providing in detail and providing guidelines for implementation of a number of Articles of the

Law on Lawyers, the website www.nhquang.com uses both the term lawyer and barrister:

Regarding remuneration of barristers participating in criminal cases, it is stipulated

as follow: the remuneration of barristers participating in proceedings in criminal cases shall

be agreed by the client and law office, law firm or the individually practising barrister in

compliance with regulations of the Law on lawyers based on working hour or all-in-one

method; however, the maximum remuneration of barristers shall not exceed VND100,000 per

working hour and the working time of the barrister shall be agreed between him and the

client.

35

In cases where a barrister is appointed by litigatory agency for a case, his payment

shall be VND120,000 per working day.

The term used in the news item is quite accurate as according to Wikipedia online dictionary:

Barrister will usually be the lawyer who represents litigants as their advocate before the

courts of that jurisdiction. A barrister will usually have rights of audience in court, whereas

other legal professionals will have more limited access, or will need to take additional

qualifications to do so. In this regard, the profession of barrister corresponds to that part of the

role of legal professionals found in the civil law jurisdictions relating to appearing in trials or

pleading cases before the courts.

4.1.3. Some suggestions on translating legal document

It is a fact that, in legal translation, a problem arises from the very beginning if the translator

aims at finding the exact terminological equivalent. According to Capellas-Espuny G. (1999),

the attribution of an equivalence to a legal term, for which no comparable concept exists in

another legal system, can be the cause of ambiguities, confusion and all types of

miscomprehension due to the effect the term in question produces in the reader of the

translated text. Therefore, the difficulty of terminological equivalence in legal translation is

reflected, above all, in the expectations of the reader from the translated text.

Although legal titles are less complicated than other terminology, they still pose problems for

people speaking foreign languages. As we have analysed in the previous part, translator must

be very careful as in specific contexts, one term may has many meanings.

In order to understand and translate precisely, translators must grip all specific features of both

English and Vietnamese legal systems and languages.

Altay A. (2004) in his article about Difficulties Encountered in the Translation of Legal

Texts: The Case of Turkey suggests some ways to overcome the difficulties of translating a

term or concept using the following methods:

1) Paraphrasing

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This method is explaining the source language concept if it is unfamiliar to the target reader,

when there is no equivalent institution or concept in the target culture and when a literal

translation will make no sense.

As we have mentioned above, the translation of barrister and solicitor is problematic,

since in the Vietnamese legal system there are no such job titles. As we know, in the British

legal system a "barrister" is a person who executes the legal case in courts, whereas

"solicitors" are those who declare their opinions and recommendations to the parties in a

lawsuit and who provide contact with the barrister.

To overcome the conceptual confusion, barrister is translated as "lut s tranh tng," meaning

the "lawyer in court," whereas "the solicitor" is translated as " lut s t vn" which means the

"consultant lawyer."

Concepts peculiar to the Western legal and parliamentary systems are generally translated

through paraphrasing.

2) Finding the Functional Equivalence

This is using a target language expression that is the nearest equivalent concept. Of course it is

much more difficult to find the functional equivalent of a legal source language term where

the legal institutions of two cultures do not have much in common.

To quote an example that is problematic mostly for translators between English and

Vietnamese: both "magistrate" and judge has the Vietnamese functional equivalent of "thm

phn". Moreover, both "court" and "tribunal" are translated as " ta n" which is the literal

translation of "court." Translation of "tribunal" as " ta n" is rendering the functional

equivalent of it.

Using this method frequently leaves the translator short of terminology due to the different

structures of the legal systems of the Vietnamese and American cultures.

3) Word-for-Word (Literal) Translation

This is translating lexical word for lexical word, and making adjustments of prepositions,

endings, and other grammatical features if necessary. For example, Insurance Lawyer,

Divorce Lawyer, Bankruptcy Lawyer are translated as lut s chuyn v bo hi!m, lut s

chuyn v ly hn, lut s chuyn v ph sn.

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Those are only some of the ways of translation. I hope that it will help language learners when

they learn legal language.

4.2. Implications for teaching and learning English for law

It is really great challenge for both students and language teachers of ESP to study English

legal language. For students, beside linguistics difficulties, they have to deal with differences

in cultures. For teachers, the main problem is understanding and finding equivalents of the

technical terminology and phraseology.

In order to help both learners and teachers of ESP studying legal language, it needs further

studies and research to build up checklists of legal terms in English and Vietnamese.

In this scope of this paper, I just propose some suggestions for both teachers and students to

overcome some difficulties.

Thus, I think first of all, teachers need to devote time to study legal systems, especially of their

own country and of English speaking countries. If they have overall understanding of different

legal systems, they will be able to understand properly.

When we face legal terms, we should pay attention to the contexts in which they depend on,

then we will have clues to understand them properly.

Sometimes, there are no equivalences between the terms of source and target languages, in

these cases, we should use different ways to transfer them, using the ways suggested in the

previous parts.

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Conclusion

To conclude, legal language always causes problems for people to understand. Legal titles in

English, as an aspect of legal terminology and phraseology, also create considerable

difficulties for Vietnamese law students when they learn foreign language. The main reason

that makes legal titles in America and Vietnam different is that the two legal systems belong

to two separate systems. Vietnamese law belongs to the socialist legal system while American

law basically belongs to common law system. It should be noted that compared to that of

Europe and America, the building up of the law and governing over the country by the law in

Vietnam were many centuries behind theirs; only when a new State - the Democratic Republic

of Vietnam - came into existence, was building the new law considered an important task of

the State. Thus, the two systems, of course, have their own ways of organizing operating

organs, which results in a lot of differences in legal titles of the two countries.

In the paper, legal titles in the judiciary of the two countries have been contrasted and the

results are as follows:

+ The term judge in American legal system is equivalent to thm phn in

Vietnamese. In Vietnamese, thm phn has one synonym, quan ta, which is an old word

and often used in colloquial language. In American English, judge has three synonyms,

magistrate, jurist and justice. Among these words, only magistrate causes problem for

people to understand. It is a judge at district level and has limited power compared with a

judge.

The term chnh n has one synonym, chng l, which is an old word. Due to the

difference of the two legal systems, the term chnh n in Vietnamese is equivalent to chief

justice and chief judge in the United States.

+ The word ki!m st vin in Vietnamese legal system is equivalent to three words in

American legal system, prosecutor, procurator and attorney

+ The term lawyer has many synonyms in English. The Websters online dictionary

gives a list of twenty-one words that can replace the word lawyer. In Vietnamese, beside

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lut s, there are two synonyms, thy ci and trng s, but only lut s is used in

formal legal documents. The variety in the ways to express the word lawyer in English

shows the professionalism of lawyer as a career in the United States. Nguyen Tuyet Nhung

(2006) concluded that the development of legal professions and the social structure of lawyer

are well-reflected in language system.

+ Jury in American legal system is not the same as hi thm nhn dn in

Vietnamese. Jurors in American work somewhat differently from Vietnamese peoples

assessors. Grand jurors in American can decide if the accused would be tried in criminal cases.

The way of selecting jurors randomly among voters in the United States is also different from

the way peoples assessors in Vietnam are elected. However, in some aspects, they serve the

same purposes, for preserving freedom.

+ th k phin to in Vietnamese legal system is equivalent to clerk of the court in

American English. The term in Vietnamese can be confused with other terms in American

legal system like judicial secretary, judiciary secretary or law clerk.

The differences of legal titles of Vietnam and the United States cause a lot of challenge for

Vietnamese language learners. There are some solutions to the above problems, i.e. we can

paraphrase the term, find the functional equivalence or we can translate the terms literally.

For teachers and students of ESP, in order to grasp legal language successfully, they are

required to devote a lot of time and effort. Teachers can help students by building up check

lists of terminology in English and Vietnamese.

Proposal for further research

Language of law is really complex and it should be considered a kind of register. Thus, the

scope of the study can be further extended by investigating about:

- Analysis of legal language in different law fields.

- From the analysis, building up lists of equivalent terminology and phraseology in

English and Vietnamese.

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