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Legal translation and certified translation


A significant number of books and essays on legal and official translation have already been written, but for many this contribution is insufficient, giving the impression that the body of work does not cover the needs relating to the explanation and prediction experienced by professionals, scholars and students. On the other hand, a brief examination of the main works on legal translation shows us that, in general, only a minimal part of everything written in them focuses, in a more or less direct way, on the question of how official translation is carried out. It is also difficult to find agreement between the proposed solutions. We would have to anticipate in view of what has been said that the question of how to translate remains largely an enigma as far as legal translation is concerned (and to all types of translation, we would add). This essay will try to reflect on the problem and redirect the question, in the hope that in the future the question will find a more satisfactory answer. In order to do this, we are going to ask ourselves a series of questions. What is legal translation? Anyone who has had to teach subjects under this title knows only too well the enormous difficulty of defining this concept. It is impossible to separate subjects such as Commercial Translation and Legal Translation, as well as Official Translation and Certified Translation. We can try to define a legal translation as one that is part of a legal situation or as one that translates legal texts. In the first case - translation in a legal situation - we find large subdivisions that are often very unrelated to each other in terms of how they are translated: the procedural situation, the legislative situation, the contractual situation, the administrative situation... In the second case - the translation that works on legal texts - we find a new trap: what is a legal text? If a legal text is the one that speaks of legal concepts, the variety of types is too numerous, even political or economic works talk about law, people without a special contact with the law also speak of legal concepts in their informal conversations in the street. But there are not only innumerable types, which are supposed to impose, at least in part, different ways of translating, also all these texts, even the most supposedly legal ones, such as procedural ones, include or may include a large number of elements that correspond to non-legal fields. Any human activity can be involved in a legal process (think of judgments, contracts, legislation, etc.) and form part of the contents of an a priori text considered as legal. The situation becomes even more complicated if we think that what is being considered as legal language does not consist only of legal terms but is a complex set of terms, phrases, formulas, formats, style elements, etc., which inevitably appear always mixed with elements that are considered proper to other types of text. All of this has led us on occasion to consider the possibility of focusing the problem on the concept of "texts with a high level of legal content", although this proposal obviously does not solve the problem, it only makes it obvious. The point is that if we use a denomination such as "legal translation" to propose a specific way of translating - translation strategies and solutions - the concept must be well defined, and here "well defined" means that this legal translation must have its own way of translating, well differentiated from other ways of translating other types of translation. Otherwise, "legal translation" will be an irrelevant concept from the point of view of the interest at hand. Our experience dictates that this is the case, since the parameters that lead us to choose the way to translate a text that can be considered as legal do not find biunivocal correspondence in a single concept of official translation. Thus, we will translate a contract in different ways depending on whether the certified translation is going to serve as a mere informative instrument, is going to be used as a legal instrument, is part of the evidence of a process, serves as a model for application in a different country from where it originated, constitutes a didactic element or serves as a test or examination. The same text will receive a different translation if the translation is official than if it is not... We even dare to assert that the search for a solution for the translation of a legal concept finds a more effective way in the consideration of that concept as a "cultural reference" (a concept not shared by speakers of both cultures) than in its consideration as a "legal concept" proper, just as it will be more effective to find translation solutions for many problems under the consideration of legal translation as a process of intercultural communication/expression than under its consideration as a specific process of bilingual translation (bag of answers in many cases absent). What "way of translating"? There is no single way of translating a given document, not even if we can fully agree on what parameters impose certain translation solutions. First of all, a good part of this "translator variation" is imposed by the translator himself. Your personal style, your personal tastes, your conception of the suitability of the translation, your state of mind and your motivation for that particular certified translation, the material circumstances of time, place, availability of information, your attitude towards the client or the content of the text, etc. may determine, at least in part, the way you translate and the translation solutions you adopt. The study of these factors is probably the most neglected at this time due to the prevailing conceptions of translation which thought that the translation solutions to be adopted depended exclusively on the original text or, at most, also on the function of the translated text and the translation order. Although there is strong opposition to the acceptance of synonymies within a language, the fact is that there is also a certain degree of variation when it comes to choosing one solution of expression or another within what is considered legal expression. The translator will often be able to choose between several options offered by the language to express the same in his translation. The acceptance of all the parameters that influence the translator to opt for one certified translation solution or another (parameters not formulated or fully systematized at the moment) is not enough to know how to translate a legal text (if the concept of legal text were clear). We need to know which are the potential solutions to choose from. These potential solutions were initially formulated by differential stylistics as translation "strategies" or "techniques"; today we know that they are not such techniques or strategies but really expressive resources, shared by translators, monolingual writers who refer to concepts with which the interlocutor is unfamiliar, creators of lexicon and speakers in general of a language. The inventory of these expressive resources has so far been incomplete and lacking in systematization. What is the correct translation? The translator needs to translate the original text, the translation order, to know the repertoire of possible solutions, but all this does not lead us to the "correct translation" of the text, not even to the correct translation of its smallest translation units. The idea of "the correct translation" comes from comparative and equivalentist linguistic schemes on the translation. It does not matter whether the equivalence pursues the equivalence of meaning or whether - after a comparison of the conceptual systems, of signification and of expression of the languages involved - it accepts its impossibility and proposes other types of equivalence "dynamic", "functional", etc. It is true that there are incorrect translation solutions, but their incorrectness, when it exists, comes more from the incomprehension of the original text than from circumstances specific to the way of translating. The problem is not one of correction (absolute concept) but of effectiveness and suitability (relative concept). The need felt by many to escape from prescriptivist approaches in order to impose the correct solutions has led them to think that the right way to translate is the one followed by the translators at a given moment, the "professional standard/practice", in this way the solution to the problem would lie in establishing how the professionals translate. This concept of standard/practice is aimed at statistical solutions, in which what is established are the solutions mostly adopted among the interviewees or studied and their relative frequencies. For us, the mere fact that in different eras it has been translated mostly in different ways (think of the variation in the translation of proper names throughout history), indicates the relativity of the concept of translation norm/practice. The standard/practice evolves over time and the function of translation scholars is not to fossilize the standard but to advance it towards greater communicative efficiency of translation. The difference lies in considering that the translation is correct or incorrect (if in the beginning this concept depended on the fidelity to the meanings of the original text it is now made dependent on its fidelity to a norm/practice) or in considering that the translation is more or less suitable for certain purposes and that - as a technology that pursues the most efficient way of performing a task - it is permanently improved and can be improved. The standard/practice of translation as we have defined it is therefore useful, but only as a point of support to overcome it. There are other forms of "rule" that influence or determine how legal translation is translated. In addition to the restrictions imposed by the content of the text, by its genre, by the translator himself or by professional practice (which imposes "default ways of translating"), all those involved in the act of translation try to impose their own "rules": the client, the initiator, the recipient..., solutions often incompatible with each other and with those of the translator. This is how we have illustrated it in some of our works. These different solutions are usually in conflict - which poses interesting ethical problems - and respond to the interests of different parties and in them different conceptions of translation are confronted, notably that of the expert translator in his or her work (attending to communicative needs and respect for the truth) and that of other participants who are unaware of the problems and solutions of translation, who do not know the original text or who consider translation under different systems of priorities than those of the translator. The client's rule can take the form of a "house rule" and play a decisive role in choosing the form of translation, which is only restricted by ethical issues. The existence of different ways of translating acceptable for a text or one of its units has led in the past to propose ways of choosing from among all these ways which is the correct one (a position which, with the necessary nuances, seems to support Alcaraz). This is an attitude that seeks to abandon the concept of equivalence but still relies on it. The practice of translation and the various theoretical considerations suggested here lead us to establish that, although we cannot rule out for any hypothetical case the existence of a single suitable translation solution, it is usual to expect that the acceptable solutions will be multiple and even that we will not be able to distinguish different degrees of suitability among several of them. The initial question of "how to translate" has already broken down into several different questions: "how to translate", "how to translate", "how to translate" and "how to translate". The specific weight of each of them when the translator makes his decisions depends on the specific translation situation. The sworn translator, when making his official translations, certifies that his work is "a faithful and complete translation" of the original text. Somehow, this demand is generalized by many translators and other participants in the translation to any kind of legal translation, to such an extent that, if we consulted many involved, we would probably come to the conclusion that the main characteristic of legal translation is its literality. The concept of "literal translation" is not well defined, to the point of being inoperative, because everyone understands literality as a supposed fidelity to the original text but this fidelity can be understood and is understood in many ways: as fidelity to meanings, as fidelity to form, as grammatical fidelity, as fidelity to style, etc... It is much more useful to understand this type of the concept of "documentary translation" of Christiane Nord (1997: 47), according to which, for this option, the translator no longer tries to be faithful to the content of the original document but to this same document or text. Literality as fidelity to the original text is the way of translating that not only constitutes the norm (rule, prescription) in the sworn or official translation but also constitutes the norm (use, practice) of a good part of the legal translators and also constitutes the translation that by default is expected in general by the client who does not know well the possibilities of the translation. It is not so much the form of translation that the experienced translator would give in many cases if he were able to choose according to his own criteria of efficiency and communicative suitability, precision and style. The literal translation serves to prevent translations that do not respect the truth, is an effective tool for the identification of original information, but is often an obstacle to understanding and good style. This way of translating is proposed (with the necessary nuances) by Leo Hickey. The confusion of the concept of literal translation means that it imposes heavy burdens on the translator (not always feasible) insofar as it is not operational. In our previous work we criticised the strict application of the concept of "full or complete translation" in the case of official translation of documents. The existence of information that corresponds to different phases in the completion and formalization of the original document and the indisputable fact that the addressees and function of the original document and the translated document can never be the same-giving on numerous occasions different relevance to the same information when it appears in each of the documents- can lead us to translate with clippings with respect to the information that appears in the original text (most of the times) or even with explicit information with respect to the original (the less). Functional equivalence If, in general, for participants in a legal translation (and others) the most appropriate translation is the literal one (whatever its concept of literality), this is not the case for particular elements of legal texts: specialized legal concepts. The inequivalence of legal concepts between some systems, such as the Anglo-American and Spanish systems, is so evident that the first translation solution that assaults the translator's brain is not the "literal translation" but the translation by the functional equivalent, that is, by that legal concept or institution that fulfills the same role in the culture of the translated text. This concept of functional equivalent as a default solution has a comparative origin, derived from the comparison of legal systems and is commonly used in lexicographic works. It meets primarily comprehension needs, when the recipient has no familiarity with the foreign system, but hugely hampers identification requirements (much better satisfied by transcriptions, cognates or casts) and in many cases is a major obstacle to accuracy in the transformation of information by giving the recipient more impressions about the reference than accurate information. The use of multiple systems or combinations of different expressive procedures may contribute to meeting conflicting requirements in principle. Attempting to apply the functional equivalence procedure to anything other than specialised terminology within a legal text (style, format, general language, nonlegal concepts, etc.) may result in serious drawbacks. For us then, the functional equivalent (or "functional formulation", as we called it in a paper, represents one more option to be taken into account by the legal translator but not the only solution, much less the solution par excellence. This way of translating is proposed (with the necessary nuances) by Franzoni, Álvarez. and, to a certain extent, Borja. The function of the text In a strict application of the scope theory to legal translation (Sarcevic's approach), the form of translation would depend on the function of the translated text (primary and secondary functions in the case of several functions). This perspective is difficult to apply, as practice continually shows us that 1) texts do not have a function but receive it in each act of translation/communication, 2) the functions present within a text can be numerous and very diverse and their inventory probably has not been satisfactorily completed by now, 3) consideration of the functions present in the original text is at least as important as consideration of the functions present in the translated text, and 4) the functions do not seem to be linked to complete legal texts but to parts of it consisting of different types of information. The assignment of functions to the text and, in general, the global characterisation of the text in search of suitable forms of translation, has proved useful in any case at macro-textual levels (of the text as a whole) but we believe that it cannot supplant other types of micro-textual analysis (relating to the elements that make up the text) that have so far received less attention. Only a small part of our translation decisions will be determined or influenced by the characterization of the text as a whole with respect to parameters such as function or gender. Some authors are of the opinion that the way to translate a legal text will depend essentially on its characterization by genre. In order to do this, categories extracted from legal practice, the function of texts or the communicative situation are used. The truth is that the ways of translating and translation solutions that we can assign to each of these genre categories are not characteristic and overlap with those of other categories. We see more in common in the way of translating among all those documents that have the form of form than in the way of translating texts related to judicial texts (one of the proposed genres); we see more in common in the way of translating texts in sworn translation than we see in the way of translating doctrinal texts (another proposed genre); we see more in common in the way of translating texts for which we have the same type of information sources as we see in the translation of normative texts (new genre). That is to say, the categorization of legal texts into genres does not seem to be excessively relevant in the decision of the ways of translating them. As we said at the beginning of this paper, we do not even find that the category of "legal text" is particularly relevant with regard to its translation. In order for a genre categorization to be relevant in translation, each different genre should correspond to a characteristic and different way of translating all the texts assigned to it, which does not seem to be the case. The truth is that, for decades, the field of translation has been categorized with respect to texts (legal translation, economic translation, scientific translation, technical translation, etc., or in subdivisions thereof) and attempts have been made to find ways of translating directly linked to these categories. This philosophy has been reflected not only in the study of translation but also in its teaching, in the training of translators: the subjects have followed the same categorisation. The role attributed to text analysis in the translation process is also influenced by this position. The result has been ineffective because overlaps, repetitions and inaccuracies are constant. It seems more sensible to propose a study of certified translation and its solutions based on the study of "translation problems" than on the study of dubious categorisations of texts. Translation problems and their solutions are rarely linked in a biunivocal way with genres or other types of textual categorizations but are distributed in different planes or levels (cultural references, metaphors, proper names, information...). Conclusions The question of how the legal translation is done does not seem to have had a satisfactory answer so far. "Legal translation" is a poorly defined concept, which seems to respond to translation typologies based on typologies of texts, which are not well defined either. It seems more reasonable to look for the way to translate in the discussion of certified translation problems, although the scope of these problems is not a type of text. The problems related to macrotexto have been approached from the prism of discourse analysis and functionalism, but both approaches have proved insufficient for the time being to meet our needs and, in some cases such as functionalism, seem to require some refinement in their approaches. The problems related to the microtext have so far received for legal translation approaches linked to the question of equivalence (inheritance of linguistic and conceptual comparativism), which have inevitably led to the search for the correct solution for a translation unit when practice shows us at every moment that what the translator does is to select from a whole range of acceptable solutions according to a large number of factors whose relationship, priorities, etc. are currently insufficiently known to us. A large part of these factors does not correspond either to the content of the original text or to the translation chisels or to the conditions of communication, but lies in the translator's particular way of expressing himself and translating and in the different possibilities of expression offered by the language to which he is working. The knowledge in the future of the expressive resources of the language of the certified translation, of the factors that determine the choice of one or another resource, of the translation strategies that serve the translator for the adoption of one of several possible alternatives in the face of a certified translation problem, is what will allow us to explain how it is translated, how it can be translated, how it should be translated and how it should be translated. Probably, in a future moment like that, the category of "legal translation" has lost much of the relevance now attributed to it.

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