(Trans)formative theorising in legal translation and/or interpreting: a critical approach to deontological principles

Abstract

This article argues for a critical, transformative approach to established principles and recurrent maxims in normative discourses in the training of legal translators and interpreters. It advocates a didactic approach going beyond the socialisation of the student in the norms and deontological principles governing the profession. The role of theorising is defended as an empowering tool for future professionals who will have to work in very diverse settings radically transformed by globalisation and migration. The significance of transformative approaches for a profession that must face unprecedented challenges is analysed and exemplified focusing on two recurrent principles expected in legal interpreting and translation: equivalence and neutrality.

Keywords:

• legal translation and interpreting
• critical approaches
• transformative pedagogies
• ethics
• deontology

1. Introduction, aims and methodology

Social and institutional settings in which legal interpreters and translators (LITs) operate in current societies, which have been radically transformed by the phenomena of globalisation and migration, are characterised by heterogeneity, pluralism, differences and even by asymmetry, conflict and misunderstandings. These characteristics are at odds with the socio-professional discourse that has traditionally governed the practice of legal translating and interpreting (LIT), which projects translation as sameness, as a copy. In this article, I will defend the advantages of a critical, transformative approach to normative discourses in LIT as put into practice in various legal translation courses. To begin with, the theoretical development of the normative discourses in LIT is assessed. The relevance of fostering critical metatheoretical skills in trainee LITs and of adopting ‘transformative approaches’ to theory in training is highlighted and framed within the current academic and socio-professional debate about LIT. The last section illustrates how these transformative approaches may use critical theoretical insights into equivalence and neutrality as a stage prior to practising with actual legal translating assignments with an increased awareness of the role of LITs as necessarily self-reflexive and self-critical social agents.

2. State of the art: dominant regulatory discourses on LIT

LITs have traditionally been bound to strict compliance with recurrent principles in the normative discourse regulating professional conduct, including faithfulness, accuracy and neutrality (Ko 2006; McDonough 2011, 3.1; Baixauli 2012, 196–200; Vigier Moreno 2014, 362). Indeed, idealistically postulated values such as fidelity are often explicitly invoked in instructional texts for translators and interpreters working in international organisations (Harvey 2002; Šarčević [1997] 2000, 16, 2010, 32; Gómez 2002, 451). Needless to say, these values coincide with social expectations regarding legal translation, which is often conceptualised as a ‘special’ type of translation bound to non-negotiable requirements (Harvey 2002; Rycroft 2011; Clifford 2004).

Inspired by Foucault, Derrida, Hall, Butler and other authors in the discipline, who understand that (professional) identities are (re)constructed by discursive practices (Hermans 1999, 158–161; Inghilleri 2005, 143; House, Martín Ruano, and Baumgarten 2005), my interest lies in assessing the implications that the non-problematising of this discourse in training may have on the profession in the long term. Authoritative discourses are powerful ‘social performatives’ that shape and regulate professionals’ self-perception and their responses to specific challenges. When internalised as natural or inescapable they inspire, but also limit, translation behaviour.

In recent years, codes of conduct have been hailed as a means of progressing towards the professionalisation of a low-status activity (European Commission 2009, 17, 2012, 30). In spite of their symbolic value as control mechanisms, it may well be that the unquestioned assumption of their principles as a priori elements on which to build legal translation competence has a counterproductive effect. Various authors help us to appreciate the dangers of uncritically reifying this normative discourse in training. Criticisms against regulatory instruments in LIT range from their very nature and function (Koskinen 2000a, 82; Wolf 2010, 37) to the reductive understanding and Western bias of their habitual maxims (Šarčević 2010, 42; Angelelli 2006, 187). The need to revisit ethics has been stressed recently, especially in situations of conflict (Fiola 2004; Inghilleri 2010, 192; Valero Garcés 2014) and given the high variability of the scenarios in which LITs are currently operating (Vidal Claramonte 2013, 184; Prieto Ramos 2011, 18). For some authors, the shortcomings of normative discourses in LIT justify a critical approach to deontological issues in training (Nevado Llopis 2014).

For the purposes of this article, I am most interested in a particular criticism in the relevant bibliography which has very interesting implications for teaching: the theorising level of normative discourse. Many authors have criticised the vague and ill-defined character of requirements in codes of practice. Regulatory instruments do not generally explain the meaning of the principles they adhere to, the result being that they are often applied by translators in a divergent manner (McDonough 2011, 34; Hale 2005, 14). It has also been stressed that seemingly sacrosanct notions such as fidelity, when invoked as guidelines in difficult situations, do not provide specific solutions (Mayoral Asensio 2003, 46; Prieto Ramos 2002; Nevado Llopis 2014). Furthermore, inasmuch as these values have been surpassed in other fields of the discipline and inasmuch as they are contested and conceal conflicting demands, they would need to be qualified and problematised through further theorisation (Mayoral Asensio 1999; Šarčević [1997] 2000; Hermans 2001; Ko 2006). In particular, Clifford (2004, 97–98) considers emphasis on fidelity, accuracy and equivalence to be characteristic of the dominant ‘conduit model’ in LIT, based on an ‘ethics of representation’. In his opinion, this model could be complemented by other theoretical-ethical approaches (based on the concepts of ‘service’, ‘communication’ or ‘norms’) shifting interest from the linguistic component and attaching more importance to the social role of interpreters.

Taking into account that developed metacognition and self-reflection abilities have been identified as a determining factor in translation expertise – certainly in the field of legal translation, where metareflection capacity has been proved a key element of the strategic competence that is essential to translation macrocompetence (Prieto Ramos 2011, 17–18) – it would therefore seem important to devote further efforts to theorising in LIT and to incorporate this theorising for teaching, particularly in the case of inexperienced trainees. Although experienced professionals have the capacity to negotiate and play down – or even transgress (Mikkelson 1998; Nevado Llopis 2014, 255) – certain demands, for inexpert translators the contradiction between theoretical ideals and actual contexts of practice has a paralysing effect (Floros 2011, 65). Theory provides trainees with the necessary conceptual framework to act independently and responsibly in a profession which constantly requires professionals to reconsider the validity of inherited responses. The merits of theory in training and continuing professional development in providing ‘aids for mental problem-solving’ (Chesterman 2002, 7) combine with other affordances which will justify the relevance of transformative approaches to learning.

3. Theory/ies in legal translation and interpreting – which theories?

In recent years, calls for ‘bridging ivory towers’ (see Baigorri and Campbell 2009) and requests for overcoming a perceived resistance to theory in the institutional sector have been justified with epistemological arguments. From the standpoint of theories denying the indissolubility of power and knowledge, resistance to theory is seen as propagating as natural certain ‘theoretical’ models to the detriment of other visions of translation. As Brian Mossop pointed out, ‘[t]ranslating institutions do not just produce translations; … they also produce translation theories’ (1990, n.p.). Beyond epistemological considerations, the arguments recently brandished to support theorising contemplate practical consequences more in the short term. To the extent that a formalised knowledge base is considered to be an essential component of professions as such (Sela-Sheffy and Shlesinger 2011, 13–15), the current struggle for the social recognition of the professional profile of a low-status activity includes requests towards the establishing of a ‘body of systemic theory’ (European Commission 2012, 31).

Also in relation to professional recognition, theorising is seen as a useful tool for practitioners in that it provides the metalanguage with which to justify and validate decisions and practices to others. In the case of legal translation the need is even more acute. LIT is a heteronomous social field lacking sovereignty, largely regulated by external authorities. Counteracting the regulatory power of other social agents with expert discourses deriving from the field itself increases the prestige and self-assertion of practitioners vis-à-vis these agents (Hale 2005, 18).

Furthermore, the value of theory has been emphasised as a powerful mechanism for increasing the self-confidence of professionals facing unprecedented situations. In current scenarios, LITs have to negotiate diversity and pluralism, but also cultural and ideological clashes, a disparity of shared knowledge and mentalities among participants, imbalances of power and cultural misunderstandings, and tensions between what is global and what is local. Vidal Claramonte (2013, 190) contends that in the ‘era of asymmetry’ new theoretical constructs, more attuned to contemporary problems, must urgently be found.

In these calls for more theorising, certain authors show preference for descriptive research, and specifically for corpus-based research methodologies (Biel and Engberg 2013) and evidence-based ‘empirical research’ (Pöchhacker 2010). Without this casting any doubt on the benefits of rigorously describing what LITs actually do, it may be necessary to warn against the risks inherent to the reifying of the regularities detected into predictable behaviour through teaching. Presenting past behaviour as a model for the future flies in the face of a profession that is constantly changing and that needs to change. Current problems include the lack of recognition by stakeholders of the complexities of our work, the mechanistic dominant vision of the profession, the limited scope of action that is expected of professionals (see Gómez Moreno 2014, 33–34, for example, for a typology of conflictual situations owing to the public authorities’ failure to understand the role of interpreters) or the current failure of institutions to make full use of our professional skills (Koskinen 2008, 64–67).

Taking into account the vital importance of educational institutions in moulding future community practice (Wolf 2010, 42), it seems important to stress that the profession would benefit from assessing its practices self-critically in training. This spirit appears to inspire the final Declaration adopted by the European OPTIMALE project, which highlights the need to develop teaching methodologies ‘enabling students to act autonomously and critically in a range of professional environments’ (OPTIMALE 2013). More precisely, the Status Quo Report: Domain Specialization stressed both the relevance of theory in translator training and the view that ‘[t]he university’s mission is not simply to train expert translators in a variety of specialised domains, as if they were mindless drones for the labour market, but to educate critical thinkers’ (OPTIMALE WP5.2 2013). Far from restricting the scope of learning outcomes to the acquisition of knowledge, skills and competences by trainees, training is also thought to include the development of an awareness allowing the criticism of existing flaws. Projects such as ACTIVE have developed along the same lines; from a descriptive study of the socio-professional behaviour of legal translators this project aimed to identify pitfalls which could be corrected with research-action methods (Monzó Nebot 2005).

Within this tendency that conceives research and teaching as being committed to change and the evolution of the discipline, it is useful to explore the benefits of transformative approaches to theory and learning for LIT. In the forthcoming sections I will illustrate the application of these approaches to problematise principles that are repeatedly invoked in deontological codes in LIT. I understand that this approach is useful for a dynamic profession that is always in the making.

4. (Trans)formative theorising in the training of LITS

Transformative learning theory is associated with Jack Mezirow, who in the late 1970s proposed a model in the field of adult education in order to understand the evolution of individuals in dysfunctional situations when they are capable of modifying their perspective (see Mezirow and Associates 2000, for a general overview). Mezirow’s work, greatly influenced by the pioneering work of Paulo Freire ([1968] 2006), has inspired many representatives of critical pedagogy, including Henry Giroux, Stanley Aronowitz and Peter McLaren (see Darder, Baltodano, and Torres 2009, for an overview). Common to transformative and critical approaches is the core assumption that knowledge (and derived social practices) is not neutral, but enshrines preconceptions and received wisdom, uncritically assimilated frames of reference, and power relations that can be critically reflected upon and challenged. In transformational models, theorising can be used in a (continuous) learning process to foster a reflective dialogue, a ‘conscientisation’ raising awareness of and transforming those taken-for-granted mental habits and the sociopolitical conditions in which they are embedded. The use of theoretical concepts in the learning process thus not only contributes to the acquisition of knowledge as static or conservative, but also catalyses new ways of understanding, making it possible to act in new ways.

Despite their diversity, critical pedagogies originate from an acute awareness of power differentials and regimes of domination traversing existing practices. By reflecting on these hierarchical structures and influences, the learning process is conceived as an opportunity of counteracting identified oppressive forces (whether social, institutional, political, educational, etc.). Theory thus emerges as formative (enlightening, eye-opening) and as transformative (subject to change and evolution and an accelerator for change in social praxis).

Transformative approaches seem most pertinent in the training of LIT. In this area, more and more voices have been denouncing growing dysfunctional signs (European Commission 2012, 4) and expressing dissatisfaction with existing rules and expectations. Under these circumstances it seems more important than ever not only to teach the rules of the profession, but also to reflect on the frames and preconceptions from which they derive. Transforming theorising may inspire (future) professionals who, in view of the mismatch between what is expected of them and the differences, conflicts and fractures permeating all layers of translation situations, feel ‘vulnerable’ and ‘poorly equipped to handle those situations’ (Gill and Guzmán 2010, 122). Feelings of ‘unease and disorientation’ (Baker and Maier 2011, 3) often arise today in the decision-making of LITs at different levels. These range from the micro-textual (Hatim, Shunnaq, and Buckley 1995, 5, for instance, noted that ‘the Arab translator is very much on his or her own’ because of cultural differences vis-à-vis English) to the macro-strategic (Cao 2006, 26ff. doubts whether renderings resulting from sight translation requested of court interpreters by judges can achieve accuracy as required) and from the (macro)-political (in institutional translation, Muñoz and Valdivieso 2007 recognise the danger of reinforcing power differentials with the standard source-oriented translation model, given the hegemony of English as the lingua franca) to the ethical (Ko 2006, 49ff. refers to problematic clashes between LITs’ requirement of confidentiality and the duty of mandatory disclosure of illegal acts that is required of citizens at large).

In our opinion, transformative visions are potentially inspiring for critical training models in legal translation that are aware of the dangers of circumscribing ethics to the confines of existing norms. Transformative pedagogies refrain from teaching knowledge to be repeated parrot-fashion or from prescribing norms that should be followed to the letter. On the contrary, they foster the questioning of the systems of belief and action in which these become established, weigh up their limitations and their consequences against the specificities of particular contexts, consider alternative points of view and encourage an imaginative attitude in the interest of society at large.

Critical pedagogical approaches inspire recent contributions to LIT didactics. Examples include Koskinen’s (2012) pedagogical proposals to develop ‘public’ translation studies in the classroom, resisting ‘the marketization and commodification forces currently shaping contemporary university education’; the ‘ecologically-informed pedagogy for teaching social awareness in translation’ advocated by Gill and Guzmán (2010); Wolf’s (2010) call to include sociological approaches in training; and Dimitriu’s (2009) request for a critical reconsideration of Western expectations regarding translator training in a South African context.

I will now proceed to outline the application of this view of transformative theorising to address the main requirements of codes of practice in the training of LITs, with special reference to equivalence and neutrality.

5. Transformative theorising in the classroom: equivalence and neutrality revisited

According to the phases identified by Mezirow, a ‘disorienting dilemma’ often triggers the transformative learning process which brings about increased self-confidence and new roles to individuals (Mezirow and Associates 2000, 10). Confronting students with distressing quandaries related to their preconceptions in relation to legal translation proves to be a good start to force their change in perspective. Dominant views on legal translation take for granted two basic assumptions, often explicit in the discourse regulating the profession: that LIT should be equivalent to the source text and that neutrality is a compulsory requirement for LITs; in addition, faithfulness understood as lineal reproduction is often required to guarantee equivalence and neutrality (Ko 2006; McDonough 2011, 3.1; Baixauli 2012, 196–200; Vigier Moreno 2014, 362). By means of theoretical explanations and the analysis of examples where traditional views of equivalence and neutrality clearly do not apply or are openly dysfunctional, trainees are exposed to unsettling questions which encourage them to scrutinise these requirements critically. Deconstructing these values and exploring their significance beyond received ideas contribute to developing a commitment towards ethical action (along the lines advocated by Floros 2011). In our current training scenarios with increasingly diverse students who will work in a broad spectrum of heterogeneous global and local markets, a transformative theorisation of equivalence and neutrality may contribute to an open vision of legal translation which recognises the diversity of its practices and the multiplicity of translation possibilities; it may also help to articulate new ‘ethics of location’ (Venuti 1998, 186) attuned to specific contexts and to inspire new potentialities for the profession.

5.1. Equivalence revisited: paradoxes, alternatives

In this transformative approach to training, prior to any translation commission or practice, the very concept of equivalence is shown as a problematical notion, varying according to contexts and also transformable by translators themselves. This point of departure allows students to ask themselves not only how to translate, but also how it would be possible to translate in accordance with different contextually determined understandings of equivalence(s).

Although the concept has been long superseded in other translation subareas, deconstructing equivalence as a requirement in the legal field is a tough endeavour. Rather than an expectation, equivalence is a precondition underlying the workings of supranational institutions, which grant the same original status, meaning and authority to all authenticated versions of multilingual instruments. Even though many alternative routes may lead to legal equivalence, it is true that ‘equivalence’ is often understood and required as ‘correspondence’. Indeed, in accordance with the assumption of Article 33 of the Vienna Convention, identicalness is not merely assumed but often expressly searched for and explicitly encouraged, not only regarding content, but also regarding form. In international organisations, a marked preference for a ‘surface-level similarity’ that even sacrifices naturalness for the sake of visual equivalence (Šarčević [1997] 2000, 117; Koskinen 2000b, 55–56), the search for a ‘sameness format’ with established protocols and procedures – including the ‘full-stop rule’ internalised as compulsory in certain institutions (Sosoni 2011, 85) – and an emphasis on terminological uniformity through the use of cognate terms seem to be the rule. In any event, and as confirmation of the generalised effects of legicentrism in legal translation (Harvey 2002, 178), the expectation of equivalence as ‘sameness’ is well established in this vast and heterogeneous field. In this scenario ‘translation by default’ (namely, ‘the most predictable way to do a translation’, according to Mayoral Asensio 2000, 326) is linked to accurate, exact reproduction. ‘Equivalence’ as invoked is often restrictively conflated with faithful, literal or lineal renderings resulting in a mirror image of the source text.

For trainee translators with no prior experience of legal translation, being confronted with the intriguing paradox that the type of translation which they perceive as being most difficult and specialised could possibly be resolved with literalist formulae, the most common flaw attributed to novice practice, is both troubling and enlightening, and acts as a catalyst in the search for more elaborate conceptions of equivalence. For experienced translators, the decoupling of ‘equivalence’ from the strategy with which they associate it by force of habit – be it ‘linguistic concordance’ as expected in the European Union (Strandvik 2002, 461), the ‘semantic, formal and functional correspondence’ that is normative in the United Nations (Nóbrega 2010, 25), or the ‘verbatim interpretation requirement’ in court interpreting (Mikkelson 1998) – is also both disturbing and inspiring. Additional transformative theorising may come into play after this stage in order to reveal other realisations of equivalence.

Even more so than in translation studies in general, equivalence has proved to be an extremely problematical concept in the legal field. There have been countless efforts to define and qualify it, differentiating at least between ‘legal’ or ‘substantive’ equivalence, also called ‘juridical concordance’ (Šarčević [1997] 2000, 48), equivalence ‘in meaning’ or as to the ‘true intent of the text’ (ibid., 112), ‘functional’ equivalence (Garzone 1999; Mayoral Asensio 2000; Prieto Ramos 2002), and ‘formal’ or ‘linguistic’, ‘semantic’, ‘stylistic’ and ‘pragmatic’ equivalence, etc. (Gómez 2002). Far beyond this taxonomic endeavour, critical perspectives on legal translation have underlined the fact that equivalence does not lie in the texts nor in their (formal, intentional, functional, etc.) similarity with the original but rather in the authority of whoever declares them to be equivalent. For Hermans (2001, 121), the equivalence of multilingual legal instruments only exists insofar as it is proclaimed. According to Gémar (2002, 170), equivalence is unattainable and is decreed by law (the State), by agreement (between parties), or, in the case of dispute, by the judge’s decision. For White (1990, 245), equivalence does not exist; in any event, it serves not to recognise the existence of a common meaning but only to postpone the problem of difference. Koskinen (2000b) posits equivalence as an ‘institutional illusion’.

These critical insights are enlightening inasmuch as they see equivalence not as an inherent feature of translated texts but as an operation outside them: as an enunciative act, a contradictory declaration or approval of sameness. At times, legal translated texts considered equivalent clearly reflect unilateral impositions and asymmetrical power relations; in any event, and at best, legal translations are particular instances in which languages, cultures, systems, ideologies and identities are negotiated in a specific way. They are specific pacts reached within historically, socially, politically and institutionally regulated (but also transformable) limits.

The vision of equivalence in legal translation as a complex and multidimensional pact explains the institutional validity of legal translations which cannot be encompassed by traditional visions of equivalence. A particularly illuminating case in point is a type of equivalence not included in traditional classifications: ‘existential equivalence’. With this term, Koskinen (2000b, 51) refers to translations which do not fulfil any informative purpose; for example, because they are not ready in time for anybody to read them (as in the case of delayed Finish translations in the EU) or because the participants in the act of communication understand the original texts, even though they are not prepared to renounce the rights acquired by their language. This analytical category applies to texts in which what matters is not the form of the translation (and perhaps not even the quality), but the fact that the translation exists. The existence of Spanish, Galician, Basque, Catalan, Mallorquin and Valencian versions of the 2003 Treaty establishing a Constitution for Europe could be analysed in this light (Martín Ruano 2012).

Conceptualising equivalence as a pact is also helpful to understand the roles played by legal translation in international relations, where it is often an additional tool to pursue the fragile political balance between states (see Gémar 2002, for instance, for comments on the well-known case of the United Nations Resolution 242) or an element of decisive importance in processes of national identity formation (see Álvarez Nieves 2013, for an analysis of shifts in Puerto Rico’s Foundational Legal Documents). This vision also makes it possible to critically assess the wider ‘social pact’ as existing in given multicultural societies, of which legal translation (or its absence) serves as a powerful indicator: legal translation can be used and promoted as an empowering tool, or can contribute to the vulnerability of given communities. Moustaoui Srhir’s (2006) analysis of a high-quality version in standard Arabic of a Spanish institutional brochure which nevertheless is undecipherable to its intended recipients (mainly Moroccans with poor literacy skills, only familiar with their vernacular variety) allows us to see this normative, ‘equivalent’ translation as excluding. New questions and challenges emerge from these situations. Can legal translation produce versions in non-standard language? Should it be guided not only by the principle of equivalence, but also by that of ‘hospitality’ (Vidal Claramonte 2013, 192)?

The conceptualisation of legal translation as a pact also prompts reflective translation behaviour attuned to contextual demands. Legal translations are embedded within particular social contexts, and subject to a multiplicity of factors that need to be taken into account in addition to fidelity. Legal translators operate today on globalised but heterogeneous markets where requirements and expectations vary considerably: Ko (2006, 46) stresses the differences in rules in codes of ethics from country to country and even within the same country; Šarčević (2010) gives an overview of the diverse strategies in the translation of legislation used in various multilingual contexts worldwide. (Trainee) translators need to be aware of the differences in the equivalence pacts they are expected to honour in different settings.

Furthermore, equivalence viewed as a pact also raises the conviction that locally based criteria determining what makes a legal translation equivalent are, like the terms and conditions in every pact, contingent and renegotiable. This not merely explains changes in legal translation praxis over time, but also makes it possible to be prepared to stand actively for change if the existing pact may prove to be inadequate. The changes brought about in the legislative field in Canada are a very enlightening case in point. Following the decision by the Department of Justice that the conventional strategy (i.e. literal translation) used to render federal legislation into French ‘violates the principle of equal language rights’, Canada has developed new methods of bilingual drafting, ‘swinging the pendulum to idiomatic translation and even beyond’ (Šarčević [1997] 2000, 46). When exposed to the ‘creative’ translations declared to be equivalent in Canada, which blatantly challenge the expectation of visual equivalence, (trainee) translators perceive the historicity and relativity of their visions of translation. Even if they do not think it appropriate to assume the level of subversion of the Canadian ‘Odyssey’ (Gémar 2013), students are encouraged by these translations to explore new visions of idiomatic faithfulness. Furthermore, they perceive that their behaviour is not restricted to the linguistic dimension: they discover themselves as fully fledged social actors, forging pacts between legal systems, cultures and languages. Translators thus see themselves as individuals located within particular social networks and systems of power relations, with very specific features determining the limits not to be transgressed, but also defining the range of possibilities that translation may explore. Critical theorisations of equivalence may raise an awareness of the social inscription of legal translation, of the constraints translation is subjected to, but also of the agency this social inscription needs and allows for, often exceeding the agenda in the original text.

Indeed, from a vision of ethics that contemplates the situatedness of translating practice, the various possibilities of ‘equivalence’ – including that of traditional ‘fidelity’ – begin to acquire broader macro-structural and geopolitical implications that must of necessity be taken into account. If we accept that legal translating, in common with other types of translating, is always a political act, the possibility of remaining neutral disappears from a philosophical perspective. Certainly, neutrality is a strong social expectation often expressly invoked. Transformative theorising may help trainees to reflect on what acting ‘neutrally’ as a translator involves in an era in which numerous disciplines see neutrality as a Utopia.

5.2. Neutrality revisited: paradoxes, alternatives

Just like equivalence or accuracy, neutrality embodies a seemingly ‘monolithic, non-negotiable’ concept (Rycroft 2011, 220). Claims for strict compliance with neutrality are often put forward as a guarantee for the professionalisation of translation and interpreting in the legal field. However, given the opaque character of this conflictual notion, exposing its nebulous and contradictory nature may be more convenient than its recurrent invocation.

For trainee translators and interpreters, gaining awareness of the fact that, as Baker and Maier (2011, 3) put it, ‘the ethos of neutrality’ might be ‘blind[ing] them to the consequences of their actions’ is a ‘disorienting dilemma’ (Mezirow and Associates 2000, 10). The same is true of the realisation that the behaviour often required in association with neutrality (exact and mere reproduction, repetition), if taken in a strict sense, could backfire on them and undermine their professional image. Translators accurately reproducing the substandard wording of many texts which have to be translated daily in international organisations or court interpreters mimicking the incoherent and disjointed discourse of uneducated speakers could well appear as incompetent rather than neutral (see Wagner, Bech, and Martínez 2002, 70; Rycroft 2011, 219). These troublesome paradoxes motivate learners towards more nuanced conceptual aids.

Post-structuralist approaches denying the very possibility of being neutral are enlightening in this process. From these perspectives, neutrality conceived in terms of non-intervention, non-involvement and non-interpretation appears as an oxymoron when applied to professionals who are involved in interpretive, meaning-making practices in contexts ridden by various types of conflict. In these conflictual settings, ‘the inevitability of a certain degree of embeddedness’ (Salama-Carr 2007, 2) needs to be recognised, even in the case of LITs adopting the ‘unobtrusive behaviour’ expected of them (Mikkelson 1998, 25).

Critical approaches subscribe to a paradigm shift by which traditional visions based on an ‘instrumental’ conception of language and translation as committed to objectivity, accuracy, and univocal restitution of meaning are replaced with a hermeneutic conception in which language and translation appear as tools constructing and negotiating meanings and representations. This inevitably entails making decisions, adopting positions, and forming and transforming identities. In such a scenario, neutrality is but a myth, a fallacy. Pym (1992, 162) emphasises that ‘translators cannot help but take positions – since even neutral positions have to be created’. Neutrality as it is generally understood may be explained to trainees as a particular stance assumed, a pose taken up, a social role being performed. Pleas for neutrality and objectivity appear as ideological manifestations in themselves, and the specific strategies and behaviour associated with ‘neutral’ practice can be read in political terms. Literalness, the ‘neutral’ strategy par excellence, often perceived as the safest rendering in a field where ‘suspicion’ of the translator is a key feature (Mayoral Asensio 2003, 106), appears just as one possible option among many, as ‘occulted visibility’ (Koskinen 2000a, 99). In fact, far from neutral, literalness may fuel misinterpretations based on prejudiced or exotic visions of other cultures (Mayoral Asensio 1995; Wagner, Bech, and Martínez 2002, 39). Needless to say, relying on these critical approaches does not necessarily imply renouncing neutrality as it is socially understood, but helps to understand the very complex, many-sided and multi-level conflicting demands LITs need to conciliate in order to adhere to it. Substitute concepts to confusing and impeding ‘neutrality’ may be explored.

Chesterman (1997, 162) offers a far less absolutist concept upon which to build a professional image. In his view, so-called neutrality is an effect of a relationship of trust with a client or the agents of a social network. In order to create and maintain this trust, translators adapt their behaviour to stereotyped images of professional credibility: they fulfil certain social expectations and comply with the tacit social contract regulating their performance. Concomitant with this idea is also Bordieu’s definition of habitus, a notion that has been productively applied to legal translation (Vidal Claramonte 2005; Valero Garcés and Gauthier 2010). The concept of habitus can be defined as a complex interrelation of learned behaviour giving ‘people a seemingly natural skill to perform freely in a given milieu’ (Vidal Claramonte 2005, 263). This concept helps (trainee) translators and interpreters to locate assessment criteria determining equivalence and neutrality on a higher level: far from being judged merely on the grounds of their textual/verbal performance, LITs are trusted (or not) depending on their mastery of a wealth of aspects increasing or undermining their symbolic capital.

The notion of habitus helps them to reframe recommendations in textbooks or specialised literature which might seem excessively prescriptive or arbitrary. These include advice for court interpreters to adopt both a discrete, correct attitude and attire (Mikkelson 2000, 55–56, 61), to show their awareness of the role played by all the participants in the communication, and specifically to avoid behaviour that could be considered objectionable (see Feria’s admonition ‘not to cross one’s legs, chew gum or sweets, or yawn’ [1999, 106]). Although face-to-face interaction is not as intense in the case of legal translators, the expectations related to a particular translator’s habitus are not restricted to the linguistic dimension either. Certainly, linguistic ‘institutionalisation’ strategies of all kinds, and not straightforward accuracy, seem to feature as basic procedures for acceptability in the legal field. However, legal translators are also expected to observe rules of correction both in their textual products and throughout the process: the importance of legitimation procedures enhancing their symbolic capital in their (virtual) interaction with other agents should not be minimised. Neutrality as socially understood thus emerges as a habitus comprising many aspects to be honoured by translators. Certainly, as research has shown (Monzó Nebot 2005), the standard habitus can be changed.

For training purposes, in the equation between trust and habitus, and indeed to counter the reservations expressed against habitus as a reductive, conservative category by authors such as Venuti (2013, 7), power can be introduced as a variable playing a decisive role. Code of conduct requirements are no exception to the sociological pattern that in situations of mutual trust and cooperation compliance with norms becomes more relaxed, whereas hierarchical or tense situations will tend to increase pressure towards the strict observance of mandatory procedures.

Power can be explored as an analytical category for transformative learning in at least a double dimension. Trainee translators need to know that LITs are not merely subdued by existing power relations; they are also agents who can transform and challenge the structures of domination within which they act. Jacobsen’s description of community interpreting as a speech event dominated by power differentials that decisively influence the way meanings are exchanged and negotiated is very illustrative (Jacobsen 2009, 161). Furthermore, her analysis of how interpreters use strategies to save the face of other participants as well as their own demonstrate that the degree of power held by each participant is dependent upon the role actively played by them (Jacobsen 2008).

Theoretical constructs such as trust, habitus and power detach neutrality from unilateral servitude to the linguistic material which translators and interpreters mould. The explanation of these notions in training thus helps to situate the task of LITs in far more complex processes of identity (re)construction. In this regard, LITs do not merely translate, but inevitably project visions of the (cultural, social, institutional) identities of the players in a translation situation. LITs reshape and negotiate these identities as instances of identity affirmation and reassertion, but also perhaps as events in which certain identities are negated, alienated or excluded (Martín Ruano 2012; Vidal Claramonte 2013). For the purpose of problematising neutrality, it is worth emphasising that the many identities that LITs renegotiate through and throughout their renderings include their own. Students and professionals learn that by opting for certain translation behaviour they will align themselves with particular professional narratives in confrontation with other visions of the profession. In any event, the issue of neutrality goes beyond the choice or constant renegotiation of a particular translational stance: the identity deployed by translators and interpreters qua professionals is just one of the many intersecting identities in the complex processes of (self-)identification in which every individual is constantly immersed. Knowing that the dilemmas that they will encounter will not merely appeal to their self-definition as translators or interpreters is revealing. For instance, the acute dilemmas faced by locals working as translators or interpreters for international peace-keeping forces in (post-)conflict societies far exceed their translatorial behaviour.

Additionally, the concept of identity as contextually negotiated shows that the very different circumstances and interpersonal relations within which translators operate will significantly condition or encourage their positional acting out of different (professional) identities. As an example, Clifford (2004, 109–110) observes that clients may give different latitudes to interpreters depending on where their relationship lies in a continuum of relationship building. In other words, the demands and expectations vis-à-vis the ‘neutral’ interpreter may change over time, in accordance with the previous experience of clients working with interpreters and also with the personal background of the interpreter himself/herself. This author suggests that ‘interpreters may have to engage in several different roles as their relationships with practitioners grow’. These conclusions seem to suggest that, far from being a ready-made panacea, neutrality expectations are context-dependent and need to be continuously reassessed.

In the field of the training of LITs, problematising neutrality with these theoretical visions implies renouncing prescriptivism. Far from merely teaching (future) professionals what to do, it makes them aware of the fact that in each context they will need to assess a whole range of possibilities so as to position themselves ‘neutrally’ or to challenge expectations of ‘neutrality’. Moreover, it will also help them to foresee how their inevitably interventionist and visible response will be valued. Neutrality appears not only as dependent on the choice of the ‘exact equivalent’, but it also involves negotiating their identity in a continuum of intervention and non-intervention according to the possibilities of the context. Critical theorising allows the articulating of ethical behaviour beyond the equation traditionally taken for granted between neutrality, literalist fidelity, and equivalence.

6. Concluding remarks

The need for translation training and education to embrace the issue of ethics has been strongly emphasised recently. From a socially situated view of knowledge and professional practice, transformative pedagogies assume that training cannot offer answers but at best generates questions for the persistent interrogation of beliefs which is seen as the basis of all ethical action. Theory – or transformative theorisation – contributes towards this goal. In the calls to integrate ethics as central to every translating decision (Koskinen 2000a, 16; Baker and Maier 2011, 3), theory has been praised as having a ‘liberating’ and ‘empowering’ effect (Baker and Maier 2011, 3). Presenting deontological principles to students as complex and contradictory constructs that need to be negotiated and interrogated in particular contexts fosters their awareness of the implications of their actions ‘without having to fall back unthinkingly on rigid, abstract codes of practice’ (2011, 4). In this regard, transformative theorising may serve as an attempt to enlarge students’ and practitioners’ perspectives on the obligations to be complied with by LIT, to frame them critically in particular narratives and ideologies, to ‘help [them] frame the frames’ (Gill and Guzmán 2010, 130). Framing implies the exhibition and exposition of limits, and this in turn suggests the possibility of overstepping these limits to discover new horizons. For legal translation and interpreting are far from being just and equitable in their current forms. In constantly evolving societies, legal translation and interpreting can be taught to be necessarily relearnt in other forms.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the Spanish Ministerio de Economía y Competitividad [FFI2012-35000].