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SPA Jurídica (traducción) |
contents
Introduction | The practice of legal translation: texts and contexts | The study of legal translation: development, themes and main approaches | Research potential
Legal translation is a field of professional and disciplinary specialization that focuses on the communicative needs of the creation, application and dissemination of law in more than one language, whether between different legal systems or within the same national or supranational legal order. In this field, translation thus covers a very wide range of textual genres through which public or private legal relations or issues are regulated, developed, interpreted or otherwise articulated for a variety of purposes. Accordingly, the research that feeds Legal Translation Studies (LTS) is closely linked to law and to the analysis of the discourses that shape law and condition translation practice, as will be explained below.
The structure of legal knowledge, its underlying concepts and the discursive conventions of its textual manifestations vary considerably between legal traditions and jurisdictions. Unlike other fields of knowledge which tend towards conceptual universality and univocity, the notions and procedures of each legal order are determined by the varied ways in which human relations and institutions have been organized throughout history. These idiosyncrasies are reflected in legal languages and the culture-bound elements of legal texts, and generate incongruities that, to a large extent, are characteristic of the legal translators’ communicative work, especially when different legal systems are involved.
Legal systems are not impermeable or isolated compartments. They evolve constantly and interact increasingly, in particular due to the development of international law (and supranational integration in the case of the European Union) and the growing globalization and digitalization of all kinds of cross-border relations. As a result, multiple interrelated legal norms coexist in time and space at various levels (regional, state, supranational) and may require adaptations or conceptual transplants into national jurisdictions. They also coexist with other processes of regulatory hybridization, especially in the realm of international contracts and business, under the predominant influence of legal approaches and discourses in English. Even branches of law that are less permeable to external influence and more attached to local traditions, such as procedural law, are subject to periodic regulatory reforms that can overturn key concepts used as reference in translating (e.g., the reform of the Spanish Criminal Procedure Act in 2015 or the reform of the French judicial system in 2019).
In this legal constellation, translation acts as an interface between concepts and agents in traditions that are distinct, changing and converging to varying degrees. As outlined in the following sections, translation also plays a key role in the construction of multilingual legal systems. Regardless of whether the translation is produced for purposes that differ from those of the source text (e.g., a death certificate translated for administrative purposes), or it contributes to the development of multilingual instruments from their conception (e.g., a European Union regulation), the translation process is conditioned by the legal meaning intended by the original drafters and how it is embedded in the applicable legal framework in each case. Unlike the translation of culture-bound texts for recreational or advertising purposes, legal translation is constrained by legal frameworks that limit the translator's room for manoeuvre (without necessarily implying an absence of creativity) and make comparative law an essential ally for reformulation decisions.
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| The variability of law conditions legal translation [Source] |
In view of the above, the paradigm of legal hermeneutics is highly relevant and influential in this field. In fact, the principles of accuracy and consistency, which underpin legal predictability and certainty, generally stand out as communicative priorities when translating legal texts. After all, legal translation and law share the same discursive raw material and its diverse facets. In the legal systems in which the translator is immersed, there is not one single specialized language, but a plurality of legal discourses that vary according to the legal function and the discursive situation. At the core of each system, normative discourses (mainly those used by legislators) delineate the general legal framework, together with the discourses of the judicial bodies that resolve matters of rule enforcement and interpretation. Other discourses used by legal experts in various settings where law is applied or analyzed are also traditionally associated with the concept of “legal”. However, it is the normative provisions (and their jurisprudential development) that form the backbone of the entire legal framework. They define the content and effects of the concepts and procedures to which others must adhere, in accordance with a clearly established normative hierarchy in each legal system. For example, the definitions of “concurso de acreedores” (company law), “institución de inversión colectiva” (financial law), “investigado” (procedural law), “legítima” (probate law) or “ERTE” (labour law) in Spanish legislation condition the use of these terms in administrative, contractual, judicial or notarial documents, among others.
In turn, the conceptual networks that intersect jurisdictions, branches of law and legal functions encompass all kinds of material and immaterial subjects and objects. This is because law deals with every aspect of our surrounding reality, from the most basic right to life to the technical specifications of the products we consume. This thematic plurality and the ensuing interaction with other fields of knowledge support multidisciplinary or interdisciplinary approaches to legal studies, and explain the frequent merging of legal discourses with other specialized and non-specialized discourses in the legal texts that are subject to translation. It is thus unsurprising how it is difficult to dissociate, for example, legal translation from economic translation when translating a regulation on financial instruments, or how it may be necessary to research as much technical terminology as legal phraseology when translating a contract or a judgment on industrial processes.
In short, this field is characterized by the extreme variability of the conditions, discourses and subjects of legal communication. The next sections will focus on the implications of these features and factors for the professional practice of legal translation, as well as on the aspects and approaches that have stood out in the study of this practice.
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The practice of legal translation: texts and contexts
The growing transnational movement of people, goods and services has contributed to the establishment of legal translation as one of the most demanded segments within the translation industry. This has been regularly confirmed by market studies, such as the European Language Industry surveys and the forecasts of leading translation companies, which place legal translation at the top of their turnover (see, e.g., the market analysis by Verified Market Research). Both the complexity and sensitivity associated with legal translation and its potential effects explain why it continues to be perceived as a field requiring the utmost rigour and, thus, appropriate professional competence to avoid the potentially serious consequences of inadequate translation (Scott and O'Shea 2021). Not only has this trend persisted despite the advances of machine translation, but the added value of professional human expertise in legal translation seems to have become even more pronounced in comparison with other specializations (see, e.g., Jiménez 2017: 485).
The marked variability and the legal conditions outlined above support the characterization of legal translation as an expert activity, as well as the need to develop methodological approaches that respond to its specificity. This entails determining the role of translation itself in each communicative situation and contextualizing the translation process within its legal conditions or “coordinates”. The translation-oriented analysis of texts and contexts has led to increasingly comprehensive models for carrying out this contextualization and for guiding decision-making in legal translation. Below, we highlight some parameters that have proven applicable and useful in multiple communicative settings (see, e.g., Prieto 2014b and, in a similar multidimensional vein, Scott 2017 or Soriano 2020):
- Analysis of the translation brief and communicative situation, including the type of translation and its general conditions (documentary or instrumental translation [Nord 1997: 47-52], source and target text effects, quality standards and other applicable specifications).
- Macro-contextualization of the translation process: legal systems; branches of law; text-types and genres.
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| Holistic methodological model (adapted from Prieto 2014b: 123) |
This multi-level analysis provides the main jurisdictional, normative and discursive coordinates for defining the priorities of the translation strategy in each case, and for applying specific techniques at the microtextual level. An additional twofold analysis is necessary at this level: on the one hand, determining the communicative priorities (e.g., as appropriate, identification of the singularity of the source system, functional correspondence in the target system or conceptual “neutrality”), and, on the other, assessing the acceptability of possible reformulations according to these priorities and considerations such as the relevance of each segment and the translation recipients’ expectations and needs, always in light of the overall translation strategy. This means that assertions about the adequacy of a particular translation technique cannot be generalized without properly situating the relevant macrotextual and microtextual conditions and priorities. Precisely due to lack of contextualization, many bilingual or multilingual lexicographical resources have often proven inadequate for the practice of legal translation. The same coordinates and components of the translation strategy are activated when verifying the adequacy of the translation (or translation draft), whether it is one's own (i.e. self-revision) or the text under revision has been produced by another human translator or is post-edited after machine translation, with the corresponding implications for the (in)accessibility of the decision-making process.
The following three examples serve to illustrate the diversity of communicative situations: (1) the sworn translation (for various administrative purposes in Spain) of a divorce decree issued in Scotland; (2) the translation of a contract whose bilingual copies will be signed by an American distribution chain and a Mexican textile supplier; (3) the translation of an international agreement on banking services to be authenticated in several official languages of a multilateral organization. In the first example, the only documentary translation of the three, the requirements for sworn translations in Spain must be met; the translator must help the potential target readers to identify and understand the specific bodies, concepts and features of the Scottish system, with a view to using this text for purposes that differ from those of the original. The other two translations, of an instrumental nature, will be binding for the parties in the same way as the source texts, but according to very different conditions. The first (example 2) will be guided by the referents of the two jurisdictions involved (even if one of them is chosen for the resolution of any future disagreements between the parties), and the translator will most probably have more than one option to express the contractual consent. In contrast, in example 3, the institutional translator (either in-house staff or external contractor) must adhere to the conventions of the reference international order with regard to the subject matter, and bear in mind that the potential readers in the case of languages such as Spanish will be in multiple national jurisdictions. In fact, in the latter example, the Spanish text will become part of the sources of international law.
As these examples show, notions of several branches of substantive and adjective law may be activated within the same text, in line with the main purpose of the genre, the bodies and procedures involved (procedural law in the first example) and the subject under examination (family law in the same example). In example 3, in addition to references to the procedure for adopting the international agreement, the translator will deal with various concepts of banking law, which in itself is situated between several branches of law and can be regarded as a cross-cutting regulatory area.
The above examples cover multiple legal systems, branches and subjects whose discursive forms align with established patterns per specific context and communicative purpose, as embodied in a judicial genre, a contractual genre and a normative genre, respectively. This exercise of textual categorization is a particularly useful step for textual analysis from a pragmatic, comparative and legal-linguistic perspective, beyond the lexical level. While there is broad consensus on the definition of key textual typologies such as legislative, judicial, doctrinal and contractual text-types, there is greater variation in approaches to the classification of other types of texts of legal implementation by public bodies or officers (e.g., administrative, notarial or registry texts) or between private individuals (see, e.g., Borja 2000: 84-134, Cao 2007: 9-10, Prieto 2014a: 262-265).
The common denominators of these classifications are the communicative situations in which, as noted in the introduction, legal functions are performed or related legal issues are disseminated or analyzed, and these functions and topics can be associated with distinctive discursive features. This not only occurs in strictly legal genres where other specialized and non-specialized discourses coexist to varying degrees, but also in legal subcategories of other genres or macro-genres, such as an academic article or even fiction genres on court cases (Alcaraz and Hughes 2002: 149-152). When no such link can be established between legal function or theme and discursive features (e.g., in a medical report used as evidence in court proceedings), it becomes difficult to claim that the text falls within the scope of legal translation, even if it is used for legal purposes. However, some expansive categorizations of legal translation have embraced such an assumption on the basis of extratextual criteria related to the translation context (e.g., Harvey 2002: 178).
This nuance is not trivial, as it sheds light on the border or intersecting areas between legal translation and other fields of specialization. It also supports the distinction between legal translation and overlapping categorizations based on contexts or types of translation, such as “sworn translation”, “certified translation” or “official translation”, “court translation” and “institutional translation”. Texts of a legal or administrative nature (where the latter refer to texts of legal implementation within public administrations) occupy a central or predominant place within these translation contexts or types, but not exclusively so.
At the same time, each of these categories refers to diverse professional requirements and practices. The sworn, certified or official translation of any document (legal or otherwise) is governed by the national or regional rules which provide for it, where appropriate, including specific accreditation procedures. In court settings, the needs are also diverse, yet always revolve around the conduct of judicial proceedings and often combine translation and interpreting for the courts. Finally, institutional translation is a broad concept that refers to professional practice in or for national and international organizations. It thus also encompasses translation for judicial bodies, including monolingual ones. However, what distinguishes institutional translation from other fields is the procedures and conventions developed by the translation services of each institution in pursuit of the organization’s objectives and language policies, particularly in those that have more than one official language.
From a legal perspective, the functioning of supranational and intergovernmental organizations is largely comparable to that of a national jurisdiction, as institutional activities and the corresponding processes of text production fulfill three main functions: law-making and policy formulation within the framework of the institutional mandates; compliance monitoring through surveillance bodies; and resolution of disputes or interpretation issues through judicial (or quasi-judicial) bodies. The textual constellation of each international system is composed of genres that perform these main functions and other genres that gravitate around the former (i.e., they are used for their development or are derived from them). This constellation is completed by texts of an administrative nature that are necessary for the functioning of the entire institutional machinery (Prieto 2019).
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| Main textual categories according to their legal functions in international organizations (adapted from Prieto 2019: 41) |
The quantitative and qualitative relevance of this legal dimension in multilingual institutional contexts explains the suitability of the legal translation paradigm for the practice and study of translation in these settings. The requirements of interlinguistic concordance and intertextual consistency of multilingual law prevail, in accordance with the variable conventions of each institution. The internal legal hierarchy is also reflected in outsourcing and quality assurance practices. Texts of high legal relevance or particular sensitivity due to their potential impact tend to be “safeguarded” and prioritized for revision. It should not be forgotten that the quest for quality in these contexts has been a determining factor for the professional recognition of translation, as will be seen in the following section.
Neither is it a coincidence that the only EU legislation addressing the issue of quality in translation and interpreting also refers to this field, and more specifically to criminal proceedings (Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings).
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| Legal translation is essential for international relations [Source] |
Legal translation is also the first translation specialization to be the subject of a specific ISO standard (20771:2020), which differs from the one applicable to the provision of translation services as a whole (ISO 17100:2015). While the new standard 20771:2020 has been contentious since its creation and has been rejected by various national standardization bodies (see, e.g., the statement of the German national committee in this respect), ISO's initiative highlights the importance of the legal specialization for the translation industry and the relevance of requiring appropriate qualifications to ensure quality.
The standard adopts a broad definition of legal translation, linking it to any “content” related to law or any legal “context” (ISO 20771: 7), and comprising sworn translation of any type of document, court translation and translation in other institutional contexts, with a particular emphasis on the translation of legislative texts in the latter setting (Annex B of the standard). Given this conceptual mix and the overlaps it may generate (especially with national regulations on sworn translation), as well as the vagueness or gaps regarding some aspects, it is not surprising that the standard has caused some confusion and lack of consensus about its coherence and applicability. Interestingly, it is entitled Legal translation - Requirements in English and Traduction juridique et judiciaire - Exigences in French. This type of pairing is also frequent, for example, in binomial denominations such as “legal and administrative translation” and “legal and institutional translation”, where the aim is to highlight a branch or area of legal translation.
The study of legal translation: development, themes and main approaches
The need for quality and specialization in legal translation, especially in institutional settings, has contributed not only to the professionalization of this activity (and to that of the translator's profile as a whole), but also to scholarly reflection and disciplinary development. As an (inter)discipline within Translation Studies (TS), LTS examines all aspects related to the practice of legal translation, including the processes, products and agents of translation of legal texts in their plurality of forms and contexts. The interdisciplinary dimension is indisputable, as the study of legal translation cannot be understood without drawing on the analysis of the law as an object and its comparative methods as a tool, that is, without the symbiosis between translation-oriented and legal approaches. More specifically, LTS is situated at the intersection between TS and Law and their respective links with Linguistics, in particular those of the legal sciences with Legal Linguistics or Jurilinguistics.
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| Disciplinary boundaries of Legal Translation Studies (Prieto 2014a: 266) |
The modern study of legal translation received its main initial impulses in the French-speaking world. The debates on the translation of the Swiss Civil Code at the beginning of the 20th century and the subsequent expansion of international organizations fostered academic reflection and the establishment of legal translation as a pillar of the pioneering training programs of the Geneva School since 1972 (until then, centered on conference interpreting). The dual exposure to multilingual federal law and international law undoubtedly left its mark on the plural and interdisciplinary vision of what came to be known as “juritraductologie” or “traductologie juridique”. In the Canadian context, efforts to improve the quality of legislation in French led to the establishment, in 1978, of a unique system of co-drafting and the related emergence of a jurilinguistic tradition oriented to local needs, but very influential for studies of legal translation beyond Quebec.
The spread of communicative theories of translation gave a crucial boost to scholarly development in this field. From the years preceding the new millennium, these theories marked a “catalytic” decade (Prieto 2014a: 270) in which several high-impact works devoted to legal translation were published, starting with two from the Geneva and Quebec traditions in French, Bocquet (1994, expanded in 2008) and Gémar (1995), respectively. A third publication in English, Šarčević (1997), which the author prepared largely by drawing on data gathered during her years in Switzerland, would eventually become a landmark due to its international scope. These works were followed by manuals such as those by Borja (2000), Alcaraz and Hughes (2002) and Cao (2007), as well as the first applications of functionalist postulates in legal translation (Nord 2018: 129-131).
The emphasis of these approaches on the diversity of communicative purposes and their systematic dissection to achieve translation adequacy is in keeping with the variability of communicative coordinates in legal translation. This adaptability had a particularly liberating effect with respect to previous stereotypes linked to “equivalence”, including: the traditional ideal of the search for pre-existing equivalents or equivalents to be established in the target culture (and the resulting myth of the impossibility of legal translation when such equivalents do not exist); the weight given to intuition; and the prevalence of literal translation as the “default” preferred technique to avoid “deviating” from the original. In other words, the deterministic vision that makes translation a scapegoat for legal asymmetries is thus countered. Instead, another dynamic, polyvalent perspective is advanced wherein dealing with these incongruities is taken as a mandatory step to provide appropriate communication solutions in each situation.
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| Šarčević (1997), a milestone in the development of Legal Translation Studies |
To that end, the use of comparative law methods has attracted primary attention in studies on terminology in legal translation, the most recurrent topic within LTS. This is undoubtedly due to the role of terminology as the backbone of legal discourses and to the notional divergences it produces, making it necessary to contrast referent concepts in the space and time in which they acquire meaning, similar to the analyses conducted by legal comparatists (see, e.g., Glanert 2014). However, in the process of translation, the identification of functionally comparable notions between legal systems is key to informed decision-making, but not an end in itself. These methods are applied not only in inter-systemic legal translation. They can also be relevant at the microtextual level for the translation of legal texts within a national or supranational multilingual system, for example: when translating the names of culture-specific national bodies or realities in texts of an international body on rule implementation, for which it may also be necessary to compare referents from multiple jurisdictions in the target language (Prieto 2014b: 127-129); or when translating the names of regional institutions or concepts from other jurisdictions in documents of a multilingual federal system (Dullion 2015: 93-94).
It would be impossible to summarize the thematic diversity of publications on terminology and, to a lesser extent, phraseology in legal translation, including a growing number of works on translation-oriented legal lexicography (e.g., Mac Aodha 2014). Beyond terminological issues, the proliferation of research in this field has been coupled with a gradual diversification of themes and approaches. Some of the cross-cutting features examined include: translation competence (Prieto 2011, Scarpa and Orlando 2017), didactics (Way 2012, 2014), quality and revision (Orlando 2017, Prieto 2015), ideological, ethical and sociological aspects (Martín 2015, Monzó 2019), cognitive processes (Griebel 2020, Hjort-Pedersen and Faber 2010), and the use of machine translation (Killman 2014, Wiesmann 2019).
If we consider research per specific textual genre, language and area, scholarly production can be described as extremely multifarious. Regarding translation for companies and individuals, it is worth mentioning, for example, studies on the translation of contracts, bylaws and other texts for commercial purposes (Borja 2013, Scott 2019), as well as research on the translation of notarial genres (Cayron 2017, Vázquez 2009). The expansion of studies on legal translation in international and supranational organizations has been particularly significant, first in the institutional framework of the European Union (see, e.g., the ethnographic study by Koskinen 2008) and, subsequently, in intergovernmental organizations (see the illustrative overview in Prieto 2018). The analysis of these contexts has given rise to the largest TS projects ever funded by research agencies (as of 2020): “Law and Language at the European Court of Justice” (LLECJ) and “Legal Translation in International Institutional Settings: Scope, Strategies and Quality Markers” (LETRINT). The latter has provided empirical data on the scope and features of institutional legal translation. It has been developed within the University of Geneva’s Transius Centre, which is specifically devoted to legal and institutional translation.
As opposed to the disperse nature of private legal instruments, the accessibility of institutional text corpora and the growing interest of multilingual organizations’ translation departments in research and innovation have greatly contributed to the development of this type of project. In all of them, as in LTS as a whole and in the practice of legal translation, corpus mining stands out as an indispensable tool for examining discursive features and translation patterns. In turn, the availability of accessible texts and tools for corpus analysis has facilitated the collection of quantitative data and heightened attention to their empirical value in increasingly sophisticated approaches, sometimes in conjunction with qualitative methods such as interviews or focus groups (Biel, Engberg, Martín et al. 2019).
The multidimensional and dynamic nature of law and its discourses, as well as the virtually endless legal, social and professional coordinates of translation in this field, constitute inexhaustible sources for research and knowledge advancement. Looking at the ground covered and yet to be explored in the myriad jurisdictions, situations and languages that require translational action, it can be seen that there remain many gaps and room for methodological refinement and professional recognition. In addition to the traditional and emerging themes mentioned above, it would be appropriate to examine, for example, the effects of globalization on the intertwining of concepts and related phenomena such as terminological convergence, legal transplants, neology, polysemy or ambiguity. It also remains to be seen whether the promotion of clarity among legal drafters has a tangible impact on the raw material with which translators work.
Nonetheless, as in other fields, the factor that is opening the most avenues for practically all angles and facets of the study of legal translation is the automation of translation processes and the growing interaction between human and machine translation. Despite the risk of trivializing the role of professional translation, expert competence continues to be essential for situating each reformulation process in its legal context and ensuring the adequacy of the product. The translators’ role as data managers and revisers or post-editors ‒that is, as guarantors of quality, the function that provides the most added value to their profile‒ is actually gaining prominence.
Examining the consequences of automation is of particular interest in institutional contexts where workflows are systematized and quality assurance is regularly conducted for the sake of discursive consistency, legal certainty and, ultimately, multilingualism. Compared to the private sector, which is more fragmented and less accessible for large-scale analysis (and without the institutional responsibility for ensuring the consistency and quality of multilingual law), institutional translation services constitute a preeminent field of experimentation around the changing paradigm of automated specialized translation and its communicative, cognitive, social, ethical and pedagogical implications.
As far as research methods are concerned, the use of corpora can only maintain its pivotal relevance for analyzing the evolution of discursive features and text quality as part of interdisciplinary approaches tailored to the needs of legal translation. It would also be desirable to further triangulate data with a view to establishing rigorous correlations between indicators of translation products, process conditions and translator competence components, their perception and their development in the new IT work environments.