A Study Of The Translator's Subjectivity In Legal Translation Decision-making: A Functionalist Perspective

This thesis conducts a systematic study of legal translation in respect of the legal translator's subjectivity in his decision-making by integrating macro-level functionalist theories of translation studies with micro-level translation practice.This study notices some problems with the traditional linguistic approach to legal translation study. The traditional linguistic approach sets "equivalence" as the criterion for legal translation. But this criterion is much more idealistic than realistic. And the requirement for definite equivalence extremely suppresses the legal translator's subjectivity and is thus in contrast to the new trend in legal translation practice as co-drafting is beginning to incorporate legal translators into the legislating process. Therefore this study turns to functionalism which highlights a more practical criterion of "adequacy": the translation should be "adequate to" the Skopos, the overall purpose of the translational communicative action, and hence renders a new perspective of decision-making to translators. Since functionalism is mainly practiced in the field of general translation and has not been employed to explain the legal translator's subjectivity in decision-making, this study adapts the functionalist approaches to legal translation particularities with the proposed "functional text typology for legal translation" as the hinge. On the basis of such a typology, the thesis presents a theoretical framework for analysis of the legal translator's subjectivity in decision-making and paraphrases it into a more operable functionalist decision-making pattern.Detailed case analysis is made on the basis of the framework and the pattern with focuses on the functionalist description of the process that a translator goes through in order to determine a certain translation strategy and on the factors at different stages of the decision-making process that influence the translator's choice.This study finds that, before he finally comes to a decision, a legal translator has to go through a process consisting of hierarchical stages, from pragmatic to lexical, or in terms of translation practice, from identification of the overall Skopos of atranslational action to language disposal. His options at the higher stage open up or close off options at the lower stage. The more discretion he has at the higher stage, the larger chance there is for his subjectivity demonstrated at the lower stage. There are constraints of the highest hierarchy, Skopos and loyalty, which functions throughout the whole translating process. And there are also constraints of lower hierarchy, such as the ST syntax, grammatical conventions of the target language, the source function, the ST-sender's real intent, the interpersonal relationship between the translator and other agents, and etc., which only work at certain stage(s) of the translating process.To sum up, by exemplifying that legal translators are able to make rational decisions within the constraint of "function plus loyalty", this study, on one hand, discourages the belief in the irrationalism of subjectivity, and on the other, also tries to ease the traditional anxiety over the legal translators' subjective decisions in translating. Legal translators should always be encouraged and be trusted to make their subjective choices on the basis of objective analysis.All roads lead to Rome. This study attempts to explore one more road than the linguistic one that leads to successful decision-making in legal translation.