摘要
This paper investigates the modal ‘shall’, whose excessive use can be problematic both in legal translation and interpretation (Coode 1843, Driedger 1976). The context of analysis is the EU for offering a relative young legal environment where translation represents the main channel of communication. The analysis moves from the deontic speech acts of ordering and prohibiting and looks at examples of performativity where ‘shall’ is not only deontically binding, but it is also used to express a necessary condition or to set a new state of things up. The disambiguation is particularly evident in multilingual translation and is performed with the help of parallel concordances, which also shed light on the conceptual framework of norms. Data consist of a parallel corpus including English, French, German and Italian versions of EU legislative texts chosen between 2001-04. As a term of comparison, a small comparable corpus containing English orginal texts has also been compiled.参考
Adams, Kenneth A, 2007. Making Sense of ‘Shall’,in: New York Law Journal. Oct. 18, 2007.http://www.adamsdrafting.com/downloads/nylj-shall-101807.pdf (accessed on 09.02.2012)
Asprey, Michèle, M, 2003. Plain Language for Lawyers (3rd Ed.). The Federation Press Pty Ltd. Sydney.
Asprey, Michèle, M, 2005. Plain Language Around the World. www.federationpress.com/au/pdf/AspreyCh4Exp.pdf (accessed on 15.02.2012)
Austin, John, Langshaw, 1962. How to do things with words. Oxford: Oxford University Press.
Australian Office of Parliamentary Counsel 2005. Plain English Manual. www.opc.gov.au/about/docs/pem.pdf (accessed on 09.03.2012).
Baker, Mona, 1993. Corpus Linguistics and translation studies: implications and applications, in: Baker Mona, Francis Gill & Elena Tognini-Bonelli (eds.), Text and technologies: in Honour of John Sinclair. Amsterdam: Benjamins, 233-52.
Barlow, Michael, 2003. ParaConc: A Concordancer for Parallel Texts, (Draft 3/03). Huston: Athlestan.
Bybee, Joan L., Perkins, Revere and William Pagliuca, 1994. The evolution of grammar: tense, aspects and modality in the languages of the world. Chicago: University of Chicago Press.
Collins English Dictionary, 2007 (9th Ed.).
Coates, Joan, 1983. The Semantics of the Modal Auxiliaries. London and Camberra: Croom Helm.
Conte, Amedeo, G., 1994. Performativo vs. normative, in: Il linguaggio del diritto, edited by Uberto Scarpelli and Paolo Di Lucia, LED: Milano,p. 247-264.
Coode, George, 1976. Legislative Expression, in: Elmer, A. Driedger, The Composition of Legislation. Legislative forms and precedents. Originally presented to Parliament as an Appendix to the Report of the Poor Law Commissioners on Local Taxation in 1843,p. 321-378.
Doonan, Elmer, 1995. Essential legal Skills Drafting. London: Cavendish Publishing Limited.
Driedger, Elmer, A, 1976. The Composition of Legislation. Legislative forms and precedents. The Department of Justice, Ottawa.
European Commission, Directorate-General for Translation 2011, English Style Guide. A handbook for authors and translators in the European Commission (7th ed.). http://ec.europa.eu/translation/english/guidelines/documents/styleguide_english_dgt_en.pdf (accessed on 13.03.2012).
Garner, Bryan, A., 1998. A Dictionary of Modern Legal Usage. Oxford: OUP.
Garner, Bryan, A., 2004. Black’s Law Dictionary. West Group.
Kimble, Joseph, 2000, A Modest Wish List for Legal Writing. In: Michigan Bar Journal 79/11. http://www.plainlanguagenetwork.org/kimble/modest.htm (accessed on 09.03.2011).
Joint Practical Guide of the European Parliament, The Council and the Commission for persons involved in the drafting of legislation within the Community institutions, 2003. European Communities. http://eur-lex.europa.eu/en/techleg/pdf/en.pdf (accessed on 14.03.2011).
Leech, Geoffrey,1987. Meaning and the English Verb. London, NY: Longman.
Oxford English Dictionary, 2010 (3rd Ed).
Šarčević, Susan, 2000. New Approach to legal Translation.The Hague: Kluwer Law International.
Véronis, Jean, 2005. Text: The Words of the European Constitution, in: Technologie du Langage.http://blog.veronis.fr/2005/04/text-words-of-european-constitution.html (accessed on 14.03.2012).
Von Wright, Georg Henrik, 1963. Norm and action. A Logical Enquiry. London: Routledge and Kegan Paul.
Williams, Cristopher, 2005. Vagueness in Legal Texts. Is there a Future for “Shall”?, in Bathia, Vijay K./Engberg, Jan/Gotti, Maurizio, Heller Dorothee (eds) Vagueness in Normative Texts.Bern: Peter Lang, p. 201-224.
Williams, Cristopher, 2006. Fuziness in Legal English: What Shall we Do with “Shall”?, Iin: Anne Wagner & Sophie Cacciaguidi- Fahy (eds.), Legal Language and the Search for Clarity. Bern: Peter Lang, p. 237-263.
License
When submitting a paper the author agrees to the following publishing agreement and processing personal data.
PUBLICATION AGREEMENT, COPYRIGHT LICENSE, PERSONAL DATA PROCESSING CONSENT
This is a publication agreement and copyright license (“Agreement”) regarding a written manuscript currently submitted via Pressto platform
(“Article”) to be published in Comparative Legilinguistics International Journal for Legal Communication (“Journal”).
The parties to this Agreement are:
the Author or Authors of the submitted article (individually, or if more than one author, collectively, “Author”) and Comparative Legilinguistics International Journal for Legal Communication (“Publisher”), address al. Niepodległości 4, 61-874 Poznań, represented by its editor in chief Aleksandra Matulewska.
§1. LICENSE OF COPYRIGHT
a) The Author and the Publisher agree that the Author grants a Creative Commons Attribution 4.0 International License, which is incorporated herein by reference and is further specified at Creative Commons — Attribution 4.0 International — CC BY 4.0 copyright license in the Article to the general public.
b) The Author grants to the Publisher a royalty-free, worldwide nonexclusive license to publish, reproduce, display, distribute, translate and use the Article in any form, either separately or as part of a collective work, including but not limited to a nonexclusive license to publish the Article in an issue of the Journal, copy and distribute individual reprints of the Article, authorize reproduction of the entire Article in another publication, and authorize reproduction and distribution of the Article or an abstract thereof by means of computerized retrieval systems (such as Westlaw, Lexis and SSRN). The Author retains ownership of all rights under copyright in the Article, and all rights not expressly granted in this Agreement.
c) The Author grants to the Publisher the power to assign, sublicense or otherwise transfer any and all licenses expressly granted to the Publisher under this Agreement.
d) Republication. The Author agrees to require that the Publisher be given credit as the original publisher in any republication of the Article authorized by the Author. If the Publisher authorizes any other party to republish the Article under the terms of paragraphs 1c and 1 of this Agreement, the Publisher shall require such party to ensure that the Author is credited as the Author.
§2. EDITING OF THE ARTICLE
a) The Author agrees that the Publisher may edit the Article as suitable for publication in the Journal. To the extent that the Publisher’s edits amount to copyrightable works of authorship, the Publisher hereby assigns all right, title, and interest in such edits to the Author.
§3. WARRANTIES
a) The Author represents and warrants that to the best of the Author’s knowledge the Article does not defame any person, does not invade the privacy of any person, and does not in any other manner infringe upon the rights of any person. The Author agrees to indemnify and hold harmless the Publisher against all such claims.
b) The Author represents and warrants that the Author has full power and authority to enter into this Agreement and to grant the licenses granted in this Agreement.
c) The Author represents and warrants that the Article furnished to the Publisher has not been published previously. For purposes of this paragraph, making a copy of the Article accessible over the Internet, including, but not limited to, posting the Article to a database accessible over the Internet, does not constitute prior publication so long as the as such copy indicates that the Article is not in final form, such as by designating such copy to be a “draft,” a “working paper,” or “work-in-progress”. The Author agrees to hold harmless the Publisher, its licensees and distributees, from any claim, action, or proceeding alleging facts that constitute a breach of any warranty enumerated in this paragraph.
§4. TERM
a) The agreement was concluded for an unspecified time.
§5. PAYMENT
a) The Author agrees and acknowledges that the Author will receive no payment from the Publisher for use of the Article or the licenses granted in this Agreement.
b) The Publisher agrees and acknowledges that the Publisher will not receive any payment from the Author for publication by the Publisher.
§6. ENTIRE AGREEMENT
a) This Agreement supersedes any and all other agreements, either oral or in writing, between the Author and the Publisher with respect to the subject of this Agreement. This Agreement contains all of the warranties and agreements between the parties with respect to the Article, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those warranties and agreements embodied in this Agreement.
b) In all cases not regulated by this Agreement, legal provisions of Polish Copyright Act and Polish Civil Code shall apply.
c) Any disputes arising from the enforcement of obligations connected with this Agreement shall be resolved by a court competent for the headquarters of the Publisher.
d) Any amendments or additions to the Agreement must be made in writing and signed by authorised representative of both parties, otherwise being ineffective.
e) This Agreement is signed electronically and the submission of the article via the PRESSto platform is considered as the conclusion of the Agreement by the Author and the Publisher.
f) Clause for consent to the processing of personal data - general
g) The Author shall give his or her consent to the processing of their personal data in accordance with the Act of 10 May 2018 on the protection of personal data and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of persons physical in connection with the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Data Protection Regulation) for the purpose and in connection with making publications available on the PRESSto scientific journals platform and DeGruyter platform, guaranteeing the security of services rendered, and improving them.
I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT.
The Author The Publisher