The translation of judgments

An examination of potential translation

challenges in translating judgments

from Spanish into Danish

PhD thesis

Anja Krogsgaard Vesterager

Aarhus University

Business and Social Sciences

Department of Business Communication

March 2011

© Forlaget Thomson A/S

Foreword

First of all, I would like to thank my supervisor, professor, PhD, Dr. Karen Korning

Zethsen for her constructive criticism, professional guidance and support throughout my

PhD studies.

Moreover, I would like to thank professor, PhD, Dr. Jan Engberg for his professional

input and advice.

Finally, I would like to thank my other colleagues at the Department of Business

Communication, Aarhus University, Business and Social Sciences for their help and

support.

March 2011

Table of contents

Summary 1

Resumé 5

Chapter 1. Introduction 8

1.1. Motivation 8

1.2. Framework 9

1.3. Research questions and method 10

1.4. Research areas 11

1.5. Theoretical standpoint 12

1.6. Delimitations 13

1.7. Structure 14

Chapter 2. Contrastive rhetoric 17

2.1. The development of contrastive rhetoric 17

Chapter 3. Legal translation and skopos theory 21

3.1. The unique nature of legal translation 21

3.2. Approaches to legal translation 23

3.3. Summary 28

Chapter 4. Legal language 29

4.1. Characterisation of legal language 29

4.1.1. Legal lexicon 30

4.1.2. Legal syntax 31

4.1.3. Legal style 33

4.1.4. The quest for precision 33

4.2. Legal language: towards a simpler future? 34

Chapter 5. The judgment 35

5.1. The notion of genre 35

5.2. Classification of legal texts 38

5.3. Characterisation of the judgment 40

5.3.1. Lawsuit progression 40

5.3.2. Writing of the judgment 42

5.4. Summary 43

Chapter 6. Presentation of the corpus 44

6.1. Corpus linguistics 44

6.2. Corpora 46

6.3. Issues in corpus compilation 48

6.3.1. Representativeness 48

6.3.2. Authenticity 50

6.4. Compiling a corpus 51

6.4.1. Types of corpora 52

6.4.2. Design criteria 55

6.5. Selecting the texts 59

6.5.1. Defining the population 59

6.5.2. Defining the sample frame 61

6.5.3. Selection method 63

6.6. Summary 65

Chapter 7. Analysis of move structure 66

7.1. Contrastive analysis 66

7.1.1. Move structure of Danish judgments 67

7.1.2. Move structure of Spanish judgments 70

7.1.3. Summary of results 72

7.2. Summary 74

Chapter 8. Analysis of rhetorical strategies 75

8.1. Contrastive analysis 75

8.1.1. The head 76

8.1.2. The factual circumstances 77

8.1.3. The legal circumstances 79

Standardisation 79

Legal terminology 80

Verbs 81

Tense 81

Impersonal writing style 81

Lexical variants and legal roles 82

Cohesion 82

Sentence length 83

Syntactic complexity 85

- Absolute constructions (gerund constructions) 88

- Sentence length versus syntactic complexity 90

Modernisation process 90

Summary 91

8.1.4. The conclusion 92

Tense and modal verbs 92

Parties 93

Standard formulae 93

Summary 95

8.2. Discussion of results 96

Chapter 9. Examining the hypothesis 99

9.1. The corpus 99

Source text 99

Translators 100

Translation situation 102

9.2. Source text analysis 104

9.2.1. Analysis of extratextual factors 108

Sender 108

Recipient 109

Sender’s intention 109

Medium 110

Place 110

Time 110

Motive 110

Text function 111

9.2.2. Analysis of intratextual factors 111

Subject matter 111

Content and composition 111

Presuppositions 115

Non-verbal elements 115

Lexis 116

Sentence structure 118

Suprasegmental features 119

Effect 119

9.3. Theoretical framework 120

9.3.1. Macro strategies 120

9.3.2. Micro strategies 121

Direct transfer 122

Calque 122

Direct translation 122

Oblique translation 122

Explicitation 123

Paraphrase 123

Condensation 123

Adaptation 123

Addition 124

Substitution 124

Deletion 124

Permutation 125

9.4. The analysis 126

Translation no. 1 128

Translation no. 2 135

Translation no. 3 143

Translation no. 4 150

Translation no. 5 156

Translation no. 6 163

Translation no. 7 169

Translation no. 8 176

Translation no. 9 182

Translation no. 10 189

9.5. Translation quality assessment 196

9.6. Results of the analysis 197

9.6.1. Syntax 197

9.6.2. Lexis 202

9.7. Discussion of results 208

9.8. Discussion of hypothesis 214

Chapter 10. Conclusion 217

10.1. Didactic consequences 224

10.2. Further research perspectives 224

Bibliography 225

1

Summary

The main research question of this thesis is:

Which challenges may arise when translating judgments from Spanish into

Danish?

The thesis seeks to answer this question through two sub-questions, focussing on the

second one:

1. What is the prototypical move structure in Danish and Spanish judgments,

and which similarities and differences do they present?

2. How are these moves verbalised in the two languages, and which similarities

and differences do they present?

The analyses are based on two premises; that is 1) being a genre, the judgment has a

prototypical move structure in both countries, and 2) these moves are verbalised by

means of various linguistic features, also referred to as rhetorical strategies.

Genre theory constitutes the theoretical frame for the analyses of Danish and Spanish

judgments. According to genre theory any text has an overall communicative purpose

and is sub-divided into different moves, all of which have a purpose of their own,

contributing to the fulfilment of the overall communicative purpose of the genre. Each

move is verbalised by means of different rhetorical strategies. This means that although

Danish and Spanish judgments may share the same overall communicative purpose and

therefore probably more or less the same moves, the structure as well as the way in

which these moves are verbalised may differ. As a result, an analysis of especially the

rhetorical strategies seems optimal for identifying which challenges the translator of a

judgment may be faced with.

The empirical basis of the analyses is a corpus of original Danish and Spanish

judgments assembled for this specific purpose.

2

The purpose of the analysis of rhetorical strategies is to formulate a hypothesis that will

subsequently be examined by means of a corpus of translations by professional

translators.

The analyses should result in better knowledge of the potential translation challenges of

judgments. Such knowledge could be of interest not only to students and professional

translators but also to translation scholars.

Based on a move structure analysis it is concluded that the Danish and Spanish

judgment share the same overall communicative purpose, and that they use the same

moves to fulfil this purpose. In fact, there are only few differences between the two

languages in terms of move structure. For instance, the Danish judgments include large

parts of the co-text, whereas the Spanish ones only include the conclusion reached by

the previous court instance. Moreover, the Spanish judgments include information on

appeal opportunities, payment of the counsel‟s fee and confirmation of the judgment

(move four); information which is not part of the Danish judgment.

Moreover, on the basis of an analysis of rhetorical strategies it is concluded that the

Danish and Spanish judgments display similarities as regards the purpose of the

analysed moves and the rhetorical strategies used to comply with these purposes.

However, the analysis also shows that there are differences in the use of rhetorical

strategies. These differences are found within the areas of syntax (i.e. sentence length

and syntactic complexity as measured by degree of subordination) and lexis (mainly

legal terminology and lexical variation). When it comes to syntax, the Danish

judgments are characterised by relatively short and syntactically simple sentences

whereas long sentences with an extreme degree of subordination is characteristic of the

Spanish texts. It seems reasonable to assume that texts with long and complex sentences

may be difficult to translate, and therefore the Spanish syntax with its extremely long

and syntactically complex sentences may challenge the legal translator. As regards

lexis, legal terminology may pose considerable challenges to the legal translator, who

may struggle to find the correct terminological equivalent. Moreover, lexical variation is

a common phenomenon in Spanish judgments, whereas lexical repetition is

3

characteristic of the Danish judgments. Consequently, the legal translator will have to

pay extra attention to make sure that he or she identifies the lexical variants as such

instead of mistaking them for new lexical items. Thus, on the basis of the analysis a

hypothesis is proposed that the key challenges in translating Spanish judgments into

Danish lie within the areas of 1) syntax (i.e. sentence length and syntactic complexity as

measured by degree of subordination), and 2) lexis (especially legal terminology and

lexical variation).

To examine this hypothesis, a corpus of translations by professional translators is

established. Based on a detailed analysis of the translator‟s strategies at micro level it is

concluded that the majority of the translators break with the syntactic conventions of

Danish judgments, typically resulting in an atypical syntax, which requires a

considerable processing effort on the part of the Danish recipient. In spite of this, most

of the translations are perfectly grammatical. Surprisingly, though, the analysis reveals

that the translations are generally characterised by inaccuracies and unidiomatic

expressions, and that to a wide extent the translators have failed to identify the lexical

variants of the source text. Therefore it is hypothesised that these inaccuracies,

unidiomatic expressions and word for word translations of lexical variants result from

the translators‟ lack of mental energy to handle such challenges, because they focus all

of their attention on the actual comprehension of the source text on the one hand, and on

the very long and complex syntax of the source text on the other. As a result of this

focus, they are likely to lose concentration with the remaining aspects of the translation,

including lexis, and therefore they may make mistakes they would otherwise never

make. The reason for this is that the working memory, or short-term memory, has a

limited capacity. Thus, when the translator struggles with the comprehension of the

source text as well as its syntax, he or she may not have enough capacity to deal with

other aspects of the text, such as lexis.

On this basis it is concluded that my initial hypothesis (i.e. that syntax and lexis are key

challenges in translating Spanish judgments into Danish) cannot be refuted. Thus, on

the basis of the knowledge of Danish and Spanish judgments attained during my PhD

4

studies and the analyses of this thesis, it seems plausible that syntax and lexis are key

challenges in translating judgments from Spanish into Danish.

5

Resumé

Hovedspørgsmålet i denne afhandling er:

Hvilke udfordringer kan der opstå i forbindelse med oversættelse af domme fra

spansk til dansk?

Dette spørgsmål vil jeg søge at besvare ved hjælp af følgende underspørgsmål med

fokus på det andet underspørgsmål:

1. Hvilken prototypisk trækstruktur har dommen i Danmark og Spanien, og hvori

består lighederne og forskellene?

2. Hvordan bliver denne struktur realiseret rent sprogligt i de to lande, og hvori

består lighederne og forskellene?

Analysen er baseret på to præmisser:

1. Da dommen udgør en genre, har den en prototypisk trækstruktur i både Danmark

og Spanien.

2. Denne struktur bliver realiseret sprogligt via forskellige lingvistiske midler.

Genreteorien udgør rammen for min analyse af danske og spanske domme. Det betyder,

at udgangspunktet for denne afhandling er, at enhver tekst har et overordnet

kommunikativt formål og består af forskellige træk, der hver især har deres eget

underformål, som bidrager til at opfylde det overordnede kommunikative formål. Hvert

træk realiseres lingvistisk via forskellige retoriske strategier. Det betyder, at selvom

danske og spanske domme kan have det samme overordnede kommunikative formål og

dermed formentlig mere eller mindre de samme træk, så kan der være forskelle i

trækstrukturen og den måde, hvorpå disse træk realiseres sprogligt. Derfor mener jeg, at

en analyse af særligt de retoriske strategier er optimal, når man vil undersøge, hvilke

udfordringer der kan opstå i forbindelse med oversættelsen af en dom.

6

Analysen tager udgangspunkt i en korpusbaseret undersøgelse af originale danske og

spanske domme.

Formålet med analysen af retoriske strategier er at formulere en hypotese som

efterfølgende vil blive undersøgt ved hjælp af et korpus bestående af oversættelser

udarbejdet af professionelle oversættere.

Afhandlingen har til hensigt at øge kendskabet til de udfordringer, der måtte være i

forbindelse med oversættelse af domme. En sådan viden kan være nyttig for såvel

studerende og professionelle oversættere som forskere inden for oversættelse.

På baggrund af en analyse af trækstrukturen i danske og spanske domme har jeg

konkluderet, at dommen har det samme overordnede kommunikative formål og, at de

bruger de samme træk til at opfylde dette formål. Der er kun få forskelle mellem de to

sprog. For eksempel omfatter de danske domme store dele af domme afsagt i tidligere

instans, hvorimod de spanske kun indeholder domskonklusionen. Derudover indeholder

de spanske domme information om appelmuligheder, betaling af advokatsalær og

bekræftelse af dommen (træk 4).

Derudover kan det ud fra en analyse af de retoriske strategier konkluderes, at der er

adskillige ligheder mellem danske og spanske domme, hvad angår formålene med de

forskellige træk og den måde, hvorpå trækkene realiseres rent sprogligt. Analysen har

dog også vist, at der er forskelle i anvendelsen af retoriske strategier. Det drejer sig om

syntaks (sætningslængde og syntaktisk kompleksitet) og leksis (primært juridisk

terminologi og anvendelsen af leksikalske varianter). Danske domme er karakteriset ved

at bruge korte og syntaktisk simple sætninger, hvorimod lange sætninger med en

ekstrem grad af underordning er typiske i spanske domme. Alt andet lige er tekster med

en lang og kompleks syntaks svære at oversætte, og derfor kan den spanske syntaks

være en udfordring for den juridiske oversætter. Anvendelsen af juridisk terminologi

kan også være en udfordring for oversætteren, som kan have vanskeligt ved at finde den

korrekte ækvivalent. Derudover skal oversætteren være særlig opmærksom på de

leksikalske varianter, så han ikke tror, der er tale om en ny leksikalsk størrelse. På

7

baggrund af analysen har jeg således opstillet en hypotese om, at syntaks

(sætningslængde og syntaktisk kompleksitet) og leksis (primært terminologi og

leksikalsk variation) udgør store udfordringer i forbindelse med oversættelse af domme

fra spansk til dansk.

For at undersøge hypotesen har jeg indsamlet et korpus af oversættelser udført af

professionelle oversættere. På baggrund af en detaljeret analyse af oversætternes

strategivalg på mikroniveau kan det konkluderes, at langt størstedelen af de analyserede

oversættelser bryder med genrekonventionerne for danske domme. Oftest er resultatet

en atypisk syntaks, der kan volde den danske læser en hel del vanskeligheder. På trods

af det, er oversættelserne i langt de fleste tilfælde grammatisk korrekte. Ifølge analysen

er oversættelserne derimod generelt præget af unøjagtigheder, uidiomatiske udtryk og

ord for ord oversættelser af leksikalske varianter, hvilket er overraskende, da vi har med

professionelle oversættere at gøre. Derfor har jeg opstillet den hypotese, at oversætteren

bruger al sin mentale energi på i det hele taget at forstå udgangsteksten og på dens lange

og komplekse syntaks. Dette fokus gør, at oversætteren ikke har mentalt overskud til at

fokusere på andre aspekter af oversættelsen, herunder leksis, hvilket betyder, at

oversætteren kan lave fejl, han eller hun normalt aldrig ville lave. Årsagen hertil er, at

korttidshukommelsen har en begrænset kapacitet, hvilket kan betyde, at oversætteren

ikke har nok kapacitet til at tage sig af andre aspekter af oversættelsen, fordi

udgangsteksten volder ham eller hende store udfordringer.

Det kan således konkluderes, at min indledende hypotese (dvs. at syntaks og leksis

udgør store udfordringer ved oversættelse af domme fra spansk til dansk) ikke kan

afvises. Baseret på den viden omkring danske og spanske domme, jeg har tilegnet mig

under mit Phd-studium, samt afhandlingens analyser anser jeg det for sandsynligt, at

syntaks og leksis udgør store udfordringer i forbindelse med oversættelse af en dom fra

spansk til dansk.

8

Chapter 1. Introduction

This Chapter introduces the motivation behind the choice of research topic, the

framework of the thesis, its research questions and method, a brief description of the

research areas included in the thesis, my theoretical standpoint, and finally the

delimitations and structure of the thesis.

1.1. Motivation

When I started my education at the Aarhus School of Business, Aarhus University,

almost ten years ago the translation1 of legal texts immediately caught my interest. This

initial interest in legal translation2 gradually grew, peaking during my Master‟s degree.

In the course of the final semester I noticed that, as a rule, Spanish judgments were

associated with relatively more translation challenges than other legal texts. I discussed

this issue with my fellow students several times, but we were unable to identify what

caused the translation of this genre3 to be particularly challenging, and our teacher also

failed to provide us with a reasonable explanation. From my point of view, this only

made judgments even more fascinating, as I was motivated by the challenges associated

with their translation. For this reason, I decided that judgments would be the research

topic of my thesis. The question of what is challenging is, of course, subjective in

nature. Moreover, we only translated a small selection of legal genres in class, and

therefore there are doubtless other legal genres that are just as challenging to translate as

the judgment. Even so, there can be no doubt that the judgment is a highly complex

genre, and as a result it may be associated with great translation challenges. Therefore, I

wish to examine in my thesis which challenges the translator of a judgment may be

faced with.

1 In this thesis the term `translation´ refers to both the product and the process. Translation as product is

also referred to as target text. Translation as process is defined as “the act of taking a text in one language,

known as the source language, and re-creating it in another language, referred to as the target language”

(Bowker and Pearson 2002:193). 2 In this thesis the term `legal translation´ is used to cover both the translation of law and other

communications in the legal setting (cf. Cao 2007: 12) (see also section 4.1.). 3 In this thesis the judgment is characterised as a genre (see Chapter 5).

9

1.2. Framework

As has already been indicated in the previous section, translation is the keyword and the

overall motivation for my thesis. Determining the exact scope of the thesis is, however,

somewhat more complicated. Translation studies4 and contrastive rhetoric

5

6 have

traditionally been considered two different approaches to interlingual issues. The

difference between the two is that the discipline of translation studies is concerned with

source texts and their translations, whereas the focus of contrastive rhetoric is on the

comparison of original texts in two languages.

The fields of contrastive rhetoric and translation studies also have much in common.

Both fields deal with applied rather than theoretical linguistics, “in the sense that

linguistics is used in each field for equally practical purposes: Contrastive rhetoric

assists language teaching experts and translation theory assists translators” (Connor

1996: 117). Moreover, both contrastive rhetoric and translation studies deal with first

and second-language processing, both fields are relatively new7, and both have

experienced changes in methodology (focus on empirical work and interdisciplinarity)

(Connor 1996: 119 ff.).

To sum up, although we are dealing with different approaches to interlingual issues, the

two fields selected are by no means incompatible. Hatim (1997: xiii) sensibly suggests

that the field of translation may encompass issues of contrastive language. In Hatim‟s

words:

“… translation is an optimally appropriate framework within which the entire enterprise of

languages in contrast may be usefully dealt with”.

4 Today most translation scholars refer to their field as translation studies and therefore this term will be

used in this thesis as well (Schjoldager 2008: 134). 5 Contrastive rhetoric is the study of how a person‟s writing in a second language is influenced by his or

her first language and culture (cf. Connor 1996: 5). 6 In a 2004 article Connor suggests that the term contrastive rhetoric be substituted with the term

`intercultural rhetoric´, because the latter better describes the broadening scope of the field (Connor

2004a: 272-273). In my thesis, however, I have opted for the term `contrastive rhetoric´. 7 Translation Studies began in 1972 with a paper (“The name and nature of translation studies”) presented

by Holmes at a congress of applied linguistics, and contrastive rhetoric began in 1966 with Kaplan‟s

article “Cultural thought patterns in intercultural education”.

10

Even so, I consider my thesis to be situated somewhere in the interface between the two

disciplines, as the starting point of the analyses of judgments is contrastive rhetoric, but

with a view to enlightening the translator.

1.3. Research questions and method

The main research question of this thesis is:

Which challenges may arise when translating judgments from Spanish into

Danish8?

The thesis seeks to answer this question through two sub-questions, focussing on the

second one:

1. What is the prototypical move structure9 in Danish and Spanish judgments, and

which similarities and differences do they present?

2. How are these moves verbalised10 in the two languages, and which similarities

and differences do they present?

The empirical basis of the analyses is a corpus11

of original Danish and Spanish

judgments assembled for this specific purpose.

The analyses are based on two premises, namely 1) being a genre, the judgment has a

prototypical move structure in both countries, and 2) these moves are verbalised by

means of various linguistic features, also referred to as rhetorical strategies.

8 My focus is on translations from Spanish into Danish as the professional translator usually translates

into his or her mother tongue (Borja Albi 2007: 31, Šarčević 2000a: 114, Mayoral Asensio 1999: 18). 9 The move structure refers to the prototypical internal structure of a text (see section 5.1.).

10 The linguistic features of a text by means of which the moves are verbalised are referred to as

`rhetorical strategies´ (see section 5.1.). 11

In this thesis a corpus is defined as a collection of authentic texts (or parts of texts) stored in electronic

form and collected according to specific design criteria in order to fulfil a given purpose (see section 6.

2.).

11

The purpose of the analysis of rhetorical strategies is to formulate a hypothesis which

will subsequently be examined by means of a corpus of translations by professional

translators.

The analyses should result in better knowledge of the potential translation challenges of

judgments. Such knowledge could be of interest not only to students and professional

translators but also to translation scholars.

1.4. Research areas

This thesis focuses on 3 main research areas: contrastive rhetoric, translation studies and

genre theory. These areas of study have been selected, because they seem appropriate

for satisfying the purpose of this thesis.

As stated in section 1.3., I wish to examine which challenges the translator of a

judgment may be faced with. To do so, I must carry out an analysis of both Danish and

Spanish judgments in order to identify which differences exist between the two

languages. For this purpose, I have opted for the framework of contrastive rhetoric. As

the name suggests, the field of rhetoric and its focus on effect of communication on the

recipient is fundamental to contrastive rhetoric (Connor 1996: 10). Thus, the field of

contrastive rhetoric seems to be an obvious choice, since I am mainly interested in

examining the rhetorical strategies of Danish and Spanish judgments.

As may be recalled from section 1.2., translation is the overall motivation for my thesis.

In order to understand the phenomenon of translation, the thesis must of course include

the theoretical field of translation studies. Consequently I draw upon various insights

from the field of translation studies throughout the thesis. It should be mentioned that I

have adopted a linguistic approach to translation (cf. Baker and Saldanha 2009: 148-

152), in the sense that the analyses (of rhetorical strategies and translations) focus on

linguistic issues.

Finally, I have chosen to use genre theory as a framework for the analyses of judgments.

According to genre theory, any text has an overall communicative purpose and is sub-

12

divided into different moves, all of which have a purpose of their own, contributing to

the fulfilment of the overall communicative purpose of the genre. Each move is

verbalised by means of different linguistic features, also referred to as rhetorical

strategies. This means that although Danish and Spanish judgments may share the same

overall communicative purpose and therefore probably more or less the same moves,

the structure as well as the way in which these moves are verbalised (i.e. rhetorical

strategies) may differ. As a result, an analysis of especially the rhetorical strategies

seems optimal for identifying which challenges the translator of a judgment may be

faced with.

1.5. Theoretical standpoint

My approach to translation studies is functional which means that I believe that the

function of the target text should determine the choice of translation strategy12

. More

specifically, my starting point is Vermeer‟s skopos13

theory. According to skopos theory

the overriding factor in translation is its purpose, i.e. skopos, “which determines the

translation methods and strategies that are to be employed in order to produce a

functionally adequate14

result” (Munday 2008: 79).

Although most scholars seem to agree that skopos theory has had a positive influence

on the field of translation studies, several objections have been raised to the theory (cf.

Schjoldager and Zethsen 2003: 142) (see section 3.2.). In particular, it has been

criticised for not being a real theory, because of its lack of empirical foundation

(Chesterman 1998: 157-158). According to Schjoldager (2008: 181), however, skopos

theory should not be considered a theory in the traditional sense, because it is not

formulated as a hypothesis and therefore cannot be tested empirically. In contrast, the

12

Within translation studies there is no terminological consensus on what to call the decisions made on

the part of the translator during the translation process. Thus, these decisions are referred to as

`strategies´, `approaches´, `methods´, `procedures´, `principles´, `options´ etc. In this thesis I have opted

for the term `strategy´, because it stresses the goal-oriented or functional nature of translation. 13

Skopos is the Greek word for `aim´ or `purpose´. As Schjoldager and Zethsen (2003: 152) point out, the

term skopos is not always used consistently. Following Nord (e.g. 1997a: 28) skopos refers to the purpose

of the target text in this thesis. In this connection it should be mentioned that the terms purpose and

skopos are used interchangeably throughout the thesis. 14

A translation is considered `adequate´ when it fulfils its skopos (e.g. Nord 1991: 24, see also Chapter

3).

13

theory describes an ideal, as proposed by Schjoldager (2008: 181, cf. Chesterman 1998:

157):

“We may think that the skopos should be the overriding principle in the translation process, because

it sounds intuitively sound, but we cannot know if this happens in practice”. (Emphasis as in

original).

Nevertheless, Schjoldager (2008: 181) argues that skopos theory may provide a useful

conceptual framework for our understanding of translation. Schjoldager and Zethsen

(2003: 143) advocate the application of a skopos-theoretical approach to the practice of

translation, arguing that it is “intuitively sound and useful”. I agree with the stance of

Schjoldager (2008) and Schjoldager and Zethsen (2003), and therefore skopos theory

provides the overall conceptual framework for this thesis.

1.6. Delimitations

The objects of study of this thesis are Danish and Spanish judgments, and therefore the

examples given in the thesis are in Danish and Spanish, as a starting point, but other

languages may be included, when relevant.

In addition, this thesis includes 3 main theoretical areas: translation studies, contrastive

rhetoric and genre theory. Although these areas seem appropriate for fulfilling the

purpose of this thesis, other areas of study could doubtless have been included.

Moreover, the thesis describes some of the characteristics of legal language15

in general

as well as Danish and Spanish legal language in particular. Attention must be drawn to

the fact that these descriptions are to be interpreted as tendencies rather than strict rules.

In addition, the descriptions are by no means intended to be exhaustive. The latter also

applies to the account of potential translation challenges and the analysis of micro

strategies.

15

In this thesis legal language refers to language of the law, language about the law as well as language

used in other legal communicative situations (cf. Cao 2007: 9). See also section 4.1.

14

Furthermore, the time frame of this thesis has prevented me from carrying out an

analysis of the recipient of the translation and his or her expectations which would

obviously have been very useful to the analysis of translations.

Finally, I would have liked to carry out post-translation interviews with some of the

professional translators, but this has not been possible due to the time frame of this

thesis.

1.7. Structure

The thesis consists of 10 chapters.

Chapter 1 introduces the overall frame of the thesis.

Chapter 2 introduces contrastive rhetoric which is the starting point of the analyses of

judgments. The Chapter includes more specifically, a brief introduction to the

development of the field of contrastive rhetoric and gives a few examples of studies

conducted within this particular field. The purpose of this Chapter is to introduce

contrastive rhetoric, and thus this Chapter serves as a basis for the thesis.

Chapter 3 provides an introduction to the field of legal translation. The Chapter

contains, more specifically, a description of the unique nature of legal translation and a

characterisation of the legal translator. Moreover, Chapter 3 includes a short account of

different approaches to legal translation as well as a discussion of skopos theory and its

applicability to the translation of legal texts. The purpose of this Chapter is twofold: 1)

to help the reader understand the complex nature of legal translation, and 2) to introduce

skopos theory as the overall framework for this thesis. Thus, this Chapter serves as a

basis for the thesis in general.

Chapter 4 contains a characterisation of legal language. The Chapter includes a

description of the legal lexicon, syntax and style. The purpose of this Chapter is to

introduce the reader to some of the peculiarities of legal language and to serve as a basis

for the thesis in general.

15

Chapter 5 introduces the judgment as a genre in both Denmark and Spain. The Chapter

includes, more specifically, a theoretical discussion of the notion of genre, a

classification of legal texts as well as a description of how a typical lawsuit progresses

and how a judgment is written. The purpose of this Chapter is to provide the reader with

a deeper understanding of this particular genre.

Chapter 6 contains a description of the corpus that provides the empirical basis for the

analyses of move structure and rhetorical strategies. The Chapter includes a brief

discussion of the theoretical area of corpus linguistics and various aspects that require

consideration when compiling a corpus. Moreover, the Chapter describes the selection

process of the corpus. Chapter 6 serves as a basis for the subsequent analyses.

Chapter 7 provides an analysis of the move structure of Danish and Spanish judgments.

The purpose of this Chapter is to answer the first sub-question of the thesis. Moreover,

this Chapter serves as an introduction to the analysis of the subsequent Chapter.

Chapter 8 contains an analysis of the rhetorical strategies used in Danish and Spanish

judgments. In addition, the Chapter describes the possible translation challenges

identified on the basis of the analysis. Based on the results of the analysis the Chapter

closes with a presentation of my hypothesis as to what the key challenges are when

translating judgments from Spanish into Danish. The purpose of Chapter 8 is to answer

the second sub-question as well as the main research question of the thesis.

Chapter 9 presents a corpus of translations by professional translators which forms the

basis of an examination of the hypothesis of the previous Chapter. The Chapter opens

with a description of the principles underlying the establishment of the corpus, and

moves on to an analysis of the source text. After this, the theoretical framework of the

analysis is presented. Then, the procedure of the analysis is touched upon briefly, and

the analysis is presented. After this, the Chapter includes a brief introduction to

translation quality assessment which is relevant to the analysis of the translations, and

the results of the analysis are presented and subsequently discussed. The Chapter closes

16

with discussing the hypothesis. The purpose of this Chapter is to examine the

hypothesis generated from the analysis in Chapter 8.

Chapter 10 includes the conclusion and perspectives of the thesis.

17

Chapter 2. Contrastive rhetoric

This Chapter includes a brief introduction to the development of the field of contrastive

rhetoric and gives a few examples of studies conducted within this particular field.

2.1. The development of contrastive rhetoric

Contrastive rhetoric is the study of how a person‟s writing in a second language (L2) is

influenced by his or her first language (L1) and culture (Connor 1996: 5). In Buell‟s

(2004: 101) words it examines “cultural differences on written texts, to account for why

some texts could be (or could be made) grammatically or semantically correct, but still

have a “non-native” feel”. According to Connor (1996: 3), English as a second

language (ESL) students often translate or attempt to translate L1 words into English

when writing in English as a second language. She gives the example of an ESL student

from China who describes his writing process like this:

“While choosing Chinese words is a second nature for me, extracting the proper English word is

much more difficult … Sometimes I try to make a joke, but it loses its impact in translation. Finding

the right English word to match what I am thinking in Chinese is very frustrating and often blocks

my writing process…” (Connor 1996: 3).

Connor gives another example of an ESL student from Iran who describes her writing

process like this:

“Thinking in English rather than in Persian … was something that I had to take into consideration

every time I started to write something. Many times I explained an idea the way I used to do in Iran

and the reader could not understand my point. For example in my essay about “friendship”, I used a

Persian proverb and my writing group members did not really understand its meaning so I had to

change it. Gradually I learned to think in English but I still have to practice more.” (Connor 1996: 3-

4).

Contrastive rhetoric was the first serious attempt by applied linguists to explain second

language writing; an area of study that had long been neglected due to a general

emphasis on teaching spoken language (Connor 1996: 5). It started as an attempt to

improve pedagogy, and the underlying idea was that interference from L1 was the

biggest obstacle to L2 acquisition (Sánchez Escobar 2002: 16). In 1966 the American

18

applied linguist Robert Kaplan conducted his pioneering study of organisation of

paragraphs in ESL student essays. In his study, Kaplan showed that L1 rhetorical

structures were evident in the students‟ L2 writing (Connor 1996: 14-15). On the basis

of his analysis, Kaplan identified five types of paragraph organisation:

Figure 2.1. Diagram of paragraph organisation (Sánchez Escobar 2002: 17).

Thus, essays written in English follow a linear structure, whereas those written in

Semitic languages are based on coordinate sequences, those in Oriental languages are

circular and only come to the point in the end, and those written in Romance languages

and Russian contain a certain amount of disgression and tend to introduce material that

would seem irrelevant to the English writer (Sánchez Escobar 2002: 17). By proposing

that the paragraph be considered a unit of analysis, Kaplan was the first to extend the

analysis beyond the sentence level (Connor 1996: 30), and his model provided a useful

tool for describing and evaluating texts (Connor 1996: 32). At the same time, though,

Kaplan‟s model which was based on Aristotelian rhetoric (Connor 1996: 10) has been

criticised for being too simplistic to represent an area of study as large and complex as

contrastive rhetoric (Connor 1996: 31). In consequence, in her book Contrastive

Rhetoric: Cross-cultural Aspects of Second-language Writing from 1996 Connor (1996:

8-9) introduced a new concept as well as a new model of contrastive rhetoric that is

more inclusive than the one proposed by Kaplan and other early researchers in the field.

In Connor‟s (1996: 7) words:

“The extended contrastive rhetoric takes a broader, more communicative view of rhetoric, …; it has

been influenced by developments in applied linguistics in the 1970s and 1980s. In addition, it has

19

expanded across interdisciplinary boundaries. No longer restricted to cross-cultural models of

writing supplied by contemporary applied linguistics, contrastive rhetoric now includes models of

writing developed in education, composition pedagogy, and translation studies. The new perspective

on contrastive rhetoric thus increasingly reflects the multicultural pluralism of these related

disciplines even as it benefits from and continuously enriches its own point of view. Not

surprisingly, such a perspective, especially in its interdisciplinary aspect, has been found to be

helpful to teachers and insightful for researchers in applied linguistics.”

As may be concluded from the quotation, contrastive rhetoric is influenced by many

different theories. More specifically, Connor (1996: 10-11) mentions seven different

theories that influence her theory of contrastive rhetoric; that is 1) theory of applied

linguistics, 2) theory of linguistic relativity, 3) theory of rhetoric, 4) theory of text

linguistics, 5) theory of discourse types and genres, 6) theory of literacy, and 7) theory

of translation.

For obvious reasons, the linkage between the theory of contrastive rhetoric and that of

rhetoric is relevant to this thesis (see section 1.4.) Moreover, the link between

contrastive rhetoric and translation is of particular interest to this thesis, as described in

section 1.2. In addition, Connor establishes a link between contrastive rhetoric and

genre theory, which is also very interesting given that genre theory constitutes the

framework for the analyses of judgments. Connor argues that genre theory allows for a

more focused analysis in that it enables the categorisation of texts based on their

communicative purpose, stating that “no longer are apples compared with oranges in

contrastive rhetoric” (Connor 1996: 149, cf. Connor 2004b: 297).

In a 2004 article Connor describes two major trends in contrastive rhetoric since her

1996 book. First of all, the focus of contrastive rhetoric has expanded to include not

only student essays16

but also academic research articles and grant proposals, among

others. Second, an increased emphasises has been placed on the situational aspect of

writing; that is audience, purposes etc. (Connor 2004b: 293).

16

Student essays were examined by both Kaplan (1966) and Connor (1996).

20

Since Kaplan‟s first study in 1966 many contrastive rhetoric studies have been

conducted. For instance, in a study from 2002 Sánchez Escobar compares the structure

of American English and Spanish paragraphs as well as complete essays. The study

concludes that the paragraphs written by Spanish writers tend to contain more words

than those written by American English writers, and that both languages tend to use the

same number of sentences per paragraph (Sánchez Escobar 2002: 85). Moreno (2004)

examined the metatext employed to signal premise-conclusion coherence relations in

English and Spanish research articles in business and economics. She concluded, among

other things, that both Spanish and English academics use implicit labels in

retrospective premise–conclusion metatext to a great extent, and that Spanish academics

showed a greater tendency towards using fuzzy labels compared to English academics

(Moreno 2004: 336-337).

To sum up, contrastive rhetoric studies examine differences between two languages. In

this thesis, a contrastive rhetoric study of Danish and Spanish judgments will be carried

out. To be able to compare judgments in the two languages, establishing a common

basis for comparison is vital (Connor 2004b: 298). This point of comparison is also

referred to as `tertium comparationis´ (Jakobsen 2002: 72, Ebeling 1998: 602, Arntz

1992: 112). Establishing tertium comparationis may be associated with considerable

challenges. In Ebeling‟s (1998: 602) words:

”The headache of any contrastive study has been finding the so-called tertium comparationis (TC),

that is, the common ground on which two languages can be compared to be able to establish

(dis)similarities”.

In this thesis tertium comparationis is based on genre classification (cf. Arntz 1992:

112ff.17

). The fact is that the judgment is considered to be a genre in both Denmark and

Spain (see section 5.1.). In addition, the corpus design (see section 6.4.2.) should ensure

the maximum degree of comparability between the Danish and Spanish judgments of

the corpus.

17

In his 1992 study of German and Spanish job advertisements, Arntz uses text typology as tertium

comparationis.

21

Chapter 3. Legal translation and skopos theory

This Chapter provides an introduction to the field of legal translation as well as to

skopos theory, which provides the overall framework for this thesis. More specifically,

it includes a description of what makes legal translation unique and a short account of

different approaches to legal translation18

, including a discussion of skopos theory and

its applicability to the translation of legal texts.

3.1. The unique nature of legal translation

According to several legal translation scholars (Cao 2007: 23, Gémar 2005: 57, Borja

Albi 2000: 163, Garzone 2000: 395ff., Šarčević 2000a: 12-14, de Groot 1988: 408),

legal translation is unique in the sense that legal texts are products of a certain culture

and legal tradition, which differ from legal system to legal system. In other words, legal

translation involves the translation from one legal system into another (Šarčević 2000a:

229, Weisflog 1987: 188). In Šarčević‟s (2000a: 13) words:

“Unlike medicine, chemistry, computer science, and other disciplines of the exact sciences, law

remains first and foremost a national phenomenon. Each national or municipal law, as it is called,

constitutes an independent legal system with its own terminological apparatus and underlying

conceptual structure, its own rules of classification, sources of law, methodological approaches, and

socio-economic principles.”

One could argue that all legal systems ultimately face the same legal issues, as our lives

evolve around similar situations, irrespective of our nationality: we are born, get

married, have children, etc. In spite of this, each legal system has its own way of

dealing with these legal situations, and although two legal systems may look identical

on the surface, their terminology and legal concepts19

may differ considerably as

pointed out by Šarčević (see quotation). Thus, Šarčević argues that “the main challenge

to the legal translator is the incongruency of legal systems” (Šarčević 2000a: 13).

18

The Chapter also introduces some of the trends of translation studies in general, as they provide the

basis for describing the development of the theories of legal translation. 19

Legal concepts are defined as abstractions “of the generic legal thoughts and rules within a legal

system” (Cao 2007: 54, cf. Rogers 1997:217).

22

Šarčević (2000a: 232) refers to terminological incongruence as particularly challenging

to the legal translator. The explanation for this is that being a product of different

institutions, history and culture, each legal system, has its own conceptual system and

knowledge structure. As a result, the legal terminology of different legal systems is, as a

main rule, conceptually incongruent (Šarčević 2000a: 232, cf. Cano Mora et al. 1994:

28ff., Kewley-Draskau 1994: 105). For example, the concept of revisión in Spanish

civil law corresponds with two, more specific concepts in Danish law; that is

revisionsanke and genoptagelse20

. A related issue here is the occurrence of words that

may appear similar linguistically, but whose semantic content varies, typically referred

to as `false friends´ (see section 4.1.1.). For instance, la doctrine in French refers to

legal writing rather than doctrine (Cao 2007: 58, Weisflog 1987: 213), and magistrado

in Spanish is not equivalent to magistrate, since the former is a senior member of the

judiciary, whereas the latter is the lowest-ranking judge, often a layperson (Alcaraz and

Hughes 2002a: 42). Moreover, it occurs that in different jurisdictions sharing the same

official language, different terms are used to refer to the same concept (Šarčević 2000a:

232). This is the case in Spain, where a preventive measure consisting of a retención de

bienes is referred to as embargo, secuestro, retención, depósito, ocupación, anotación

preventiva and comiso in various Spanish-speaking jurisdictions (cf. Mikkelson 1995:

203). Finally, all legal systems contain some terms which have no equivalent in other

legal systems, simply because the particular concept, action or procedure does not exist

in other legal systems. These are the so-called system-bound terms (Šarčević 2000a:

233).

Another thing that distinguishes legal translation from other areas of specialised

translation is that legal translation may produce legal effects. As a result, the profile of

the legal translator, or more specifically, the required level of legal competence on the

part of the translator, has been subject of considerable debate. In legal circles some

insist that the legal translator should be a lawyer, arguing that lawyers are `natural´ legal

translators (cf. Borja Albi 2000: 143, Šarčević 2000a: 114ff.). This view is, however,

20

In Spanish revisión includes both the ordinary revision of the legal circumstances of a lawsuit (=

ordinary appeal) and the situation in which the lawsuit is revived thereby allowing the court to look at the

factual and legal circumstances of the lawsuit (= completely new lawsuit). In Danish the first one is

covered by the concept revisionsanke whereas the latter is included in genoptagelse (Henriksen 2002:

178).

23

strongly rejected by legal translation scholars who sensibly argue that language and

translation skills are indispensable for legal translation. Thus, most legal translation

scholars seem to agree that the legal translator must have linguistic and translation

competence, as well as a basic understanding of law and a good knowledge of the legal

systems involved in the translation task (Cao 2007: 37, Sandrini 2006: 117-118, Borja

Albi 2000: 143-144, Šarčević 2000a: 113-115, Smith 1995: 179-181, de Groot 1988:

409, 416, Rayar 1988: 451).

To sum up, legal translation scholars seem to agree on the profile of the legal translator.

The question remains then, whether this view of the legal translator corresponds with

reality. After conferring with different Danish translation agencies21

, it is my impression

that the typical legal translator is very competent and highly professional. According to

the consulted translation agencies the typical professional legal translator has extensive

experience within the legal field, often having previously worked for a law firm. In

addition, legal translators typically focus on a relatively limited area of the law, thereby

achieving a high degree of specialisation. This view is shared by several scholars (Cao

2007: 38, Mayoral Asensio 1999: 25, Stolze 1999: 45, Rayar 1988: 451) who advocate

that the legal translator should be considered a translation specialist, “without implying,

however, that he is an expert in all areas of law” (Rayar 1988: 451).

3.2. Approaches to legal translation

The main concern among translation scholars has traditionally been the question of how

one should translate: word-for-word (literal translation22

) or sense-for-sense (free

translation) (Munday 2008: 19, Barbe 1996: 329, Weisflog 1987: 180). The debate on

whether a translation should be literal or free has, however, been especially

controversial among legal translation scholars, because it raises legal questions as well

(Šarčević 2000a: 23). In legal translation the main focus has been on preserving the

`letter of the law´, as legal texts have traditionally been accorded the status of `sacred´

21

I contacted the agencies Commas, Inter-set, Scantext and Jysk Translatørbureau and asked them these

questions:

- What is characteristic of the legal translator?

- How do you ensure the quality of legal translations? 22

Originally a literal translation was a word-for-word translation in which each individual word of the

source text was replaced with its closest grammatical equivalent (Munday 2008:19). Today, however, a

literal translation refers to a close rendering of the source text (ibid.: 33).

24

or `sensitive´ texts (Garzone 2000: 398). Due to the special status of legal texts, legal

translation was dominated by a literal approach much longer than other areas of

translation (Šarčević 2000a: 23). In fact, it was not until late in the 20th

century that the

development from a literal to a more free approach to legal translation started (Garzone

2000: 398-399, Šarčević 2000a: 23-24).

In the 1960s, while legal translation “remained under the grip of tradition” (Šarčević

2000a: 23), the debate among general translation scholars23

began revolving around the

concept of equivalence24

(Munday 2008: 35-36) “which was supposed to substitute the

time-honoured faithful25

/free discussion” (Zethsen 1997: 11). According to Catford

(1965: 21), for instance:

“The central problem of translation practice is that of finding TL translation equivalents. A central

task of translation theory is that of defining the nature and conditions of translation equivalence”.

Thus, focus was on the source text, and the main concern on the part of the translator

was that of finding translation equivalents, so that the features of the source text were

preserved in the target text (Nord 1997a: 7). However, as some scholars emphasise,

defining the nature of equivalence has been far from an easy task (Tack 2000: 213,

Halverson 1997: 207-208, Trosborg 1997b: 146-147). From the very beginning, the

concept of equivalence has been quite controversial, and some scholars (Nord 1991: 9,

24, Snell-Hornby 1988: 22, Reiss and Vermeer 1984: 146ff.) have rejected equivalence

as a basic concept in translation studies, arguing that the choice of translation strategy

should not be based on the source text alone. Instead, they advocate a functional

approach to translation which emerged in translation studies during the 1980s.

According to the functional approach the function of the target text should determine

which translation strategy is appropriate for producing an adequate translation. With

this new approach translation is no longer seen as a process of interlingual transfer, but

as an act of communication (Garzone 2000: 395). In her model of translational action

(Translatorisches Handeln: Theorie und Methode) Holz-Mänttäri, for instance, views

23

Scholars such as Nida, Catford, Kade, Jäger, Neubert, Wills, Reiss and Koller (Zethsen 1997: 11). 24

In translation studies equivalence is commonly defined as denoting “a degree of invariance (i.e. equal

value) between linguistic or textual items” (Schjoldager 2008: 90). 25

Faithful is another word for literal.

25

translation as “purpose-driven, outcome-oriented human interaction” (Munday 2008:

77). This theory of translational action provides the foundation of Vermeer‟s skopos

theory (Vermeer 1989/2004: 227). As may be recalled from section 1.5., the overriding

concern of skopos theory is the purpose or skopos of the target text which determines

the choice of translation strategy (Munday 2008: 79). Thus, skopos theory changes the

status of the source text (Vermeer 1989/2004: 228), as it no longer automatically sets

the standards for the translator‟s decisions (Trosborg 1997b: 152). Zethsen (1997: 18),

however, stresses that although skopos theory changes the status of the source text, it

does not attach less importance to it.

According to skopos theory the translation instructions (i.e. brief26

) given to the

translator by the client (i.e. commissioner) are key to determining the skopos of the

target text (Vermeer 1989/2004: 227, 234ff., Nord 1997a: 30). In Schjoldager and

Zethsen‟s (2003: 142) words, for instance:

“Skopos is established by the translator, guided by his/her brief … and the specific nature of the

source text and its situation”.

According to Byrne (2006: 40) the ideal brief should explicitly state all the details that

the translator needs to know about the assignment (i.e. intended function, target

audience, time, place, medium and purpose). However, as Schjoldager (2008: 157)

concludes, in reality translators rarely receive such accurate translation instructions27

.

Central to skopos theory is that a source text may have different potential skopoi,

according to the target situation (and a skopos may also have various sub-skopoi). In

consequence, a source text does not have one correct or best translation (Vermeer 1989/

2004: 234). Thus, skopos theory does not offer any concrete instructions as to how one

should translate. As Vermeer (1989/2004: 234) puts it:

26

As pointed out by Nord (1997a: 30) different translations have been used for Vermeer‟s

Übersetzungsauftrag such as translation commission, translation assignment and translating instructions.

Like Fraser (1996:125) I shall use the term brief because it suggests that the translator is an expert

capable of making his or her own decisions based on a set of instructions (cf. Schjoldager and Zethsen

2003: 152). 27

According to Nord (2006: 30) this is because the client is not a translation expert and is therefore

unaware of what kind of information the translator needs to be able to produce a translation that meets the

client‟s needs (cf. also Byrne 2006: 40).

26

“What the skopos states is that one must translate, consciously and consistently, in accordance with

some principle respecting the target text. The theory does not state what the principle is: this must be

decided separately in each specific case”.

Although most scholars seem to agree that skopos theory has had a positive influence

on the field of translation studies, it has been the object of considerable criticism (see

section 1.5.). Among other things, skopos theory is rightly criticised for not taking

ethical considerations into account (Martín de León 2008: 14-15). Although the

translator‟s professional accountability is a basic tenet of skopos theory (e.g. Vermeer

1989/2004: 228), Vermeer states that “ethics must not be mixed up with general

theoretical considerations about other subjects” (Vermeer 1996: 107). In an attempt to

solve this problem, Nord introduced the concept of `loyalty´28

in 1989 as a supplement

to skopos theory (Nord 2006: 33, cf. also Chesterman 1997: 68). According to Nord

(1992: 40) translators have a responsibility towards both the source-text sender and the

target-text recipient. Thus, the notion of loyalty is a moral obligation that translators

have towards the people who are involved in the translation process (Nord 2006: 33,

Nord 1992: 40).

Moreover, skopos theory is criticised for repeating old news (Newmark 2002: 83,

Newmark 1991: 106,), and for not providing specific solutions as to how a given skopos

is fulfilled (Stolze 1994: 164-65, 180)29

. According to Zethsen (1997: 23-25) both

points of critique are justified, but she suggests that the problem may be the word

`theory´ “which leaves one with false expectations” (Zethsen 1997: 25). Zethsen (ibid.)

explains that Vermeer is well aware that the concepts he applies are not new, and that

his true goal is to change the translator‟s attitude towards translation (cf. Vermeer

1989/2004: 236). As for the critique raised by Stolze, it may be argued that since skopos

theory does not give concrete translation instructions, it should perhaps be considered

28

The concept of loyalty should not be confused with the notions of fidelity or faithfulness which exists

between the source and target text. 29

Several other objections have been raised to skopos theory but they will not be discussed in detail here.

For an account of some of the criticisms of the theory see for instance Downie 2009, Martín de León

2008, Chesterman 1998 and Hönig 1997.

27

more of an approach to translation than an actual theory (cf. Schjoldager and Zethsen

2003: 143, Zethsen 1997:25) (see section 1.5.).

To sum up, in translation studies there has been a remarkable change in focus, from an

emphasis on the source text and the notion of equivalence to a preoccupation with the

purpose of the target text. The question now remains how the trends of translation

studies relate to the translation of legal texts.

Legal translation scholars have traditionally debated whether the approaches of

translation studies should apply to legal texts (Garzone 2000: 395, Šarčević 2000a: 2).

In the past, several attempts have been made to apply theories of general translation to

legal texts. At the same time, though, it is argued that special methods of translation are

required for the translation of legal texts (Garzone 2000: 396-397, Šarčević 2000a: 2,

Madsen 1997: 17). In Šarčević ‟s (2000a: 5) words:

“Since legal texts are subject to legal criteria, it follows that a theory for the translation of legal texts

must take account of legal considerations. In the same token, it cannot disregard basic issues of

translation theory”.

Especially skopos theory has been a controversial issue among legal translation scholars

(Christensen 2003: 102ff., Garzone 2000: 395ff., Šarčević 2000b: 330, Madsen 1997:

17). The reason for this is that skopos theory claims to be a universal theory of

translation, applicable to all types of texts in all situations (Reiss and Vermeer 1984:

76), obviously including legal texts. In addition, Vermeer explicitly extends the validity

of skopos theory to legal texts, as he provides an example of its application to an

insurance contract, which is translated differently, depending on the purpose of the

target text (Garzone 2000: 396, 401, Šarčević 2000a: 18). The main objections to

skopos theory seem to be that it focuses on the target text rather than the source text,

which should come as no surprise, since the source text enjoys an almost sacred status

in legal translation (cf. Garzone 2000: 396). Madsen (1997: 17-19, 1994: 30) for

instance argues that the source text and its potential legal effects in the target-language

country are essential when translating legal texts (cf. Šarčević 2000b: 330). However, as

Malmkjær (2005: 36) and Zethsen (1997: 19) sensibly argue, the shift in focus from the

28

source text to the target text does not mean that a translation must always adapt to the

target culture. This is just one possible skopos out of many, and another could just as

well be a close rendering of the source text. Nord (1997a: 29) emphasises that the

skopos of a particular target text may require a literal or free translation, or anything

between these two extremes; an aspect of skopos theory that has often been

misunderstood (Vermeer 1989/2004: 234). In conclusion, I believe that legal texts may

be translated for a variety of different purposes and recipients just like any other text,

and therefore skopos theory is equally suitable for the translation of legal texts and non-

legal texts (cf. Borja Albi 2007: 31, 45, Larraz 2004: 29, Garzone 2000: 403,

Vlachopoulos 1999: 138). However, due to the fact that legal texts are subject to legal

regulation, the pragmatic status of the text (i.e. legal force and validity) (see section 9.1.,

translation situation) is the overriding factor in determining the skopos of a translation.

3.3. Summary

To sum up, legal translation has traditionally been dominated by literal approaches. As a

result, many legal translation scholars have objected to the application of functionalist

approaches to legal translation, particularly that of skopos theory. In contrast, I have

argued that skopos theory may be used to translate legal texts, although the pragmatic

status of the text is the overriding factor in determining its skopos.

29

Chapter 4. Legal language

This Chapter contains a characterisation of the linguistic features of legal language that

are assumed to be universal. The Chapter includes, more specifically, a description of

the legal lexicon, syntax and style.

4.1. Characterisation of legal language

The work of lawyers is symbolic and abstract (Danet 1985:273), and therefore words

are a lawyer‟s most important tool (Gibbons 2003: 1, Tiersma 2000: 1). In a most basic

sense, then, law would not exist without language (Wagner and Cacciaguidi-Fahy 2008:

1, Pommer 2006: 15, Tiersma 2000: 1, Sandrini 1996: 11).

In defining the language used in legal settings, some scholars distinguish between

`language of the law´ and `legal language´ (Šarčević 2000a: 9, Kurzon 1989: 283ff.,

Mellinkoff 1963: 3). The language of the law is restricted to “special-purpose

communication between specialists, thus excluding communication between lawyers

and non-lawyers” (Šarčević 2000a: 9), whereas legal language is language about the law

(Cao 2007: 9). Following Cao (2007: 9-10), however, this thesis will use the term legal

language to refer to language of the law, language about the law, as well as language

used in other legal communicative situations (cf. also Borja Albi 2000: 11). This field of

research is also referred to as forensic linguistics (understood in its broadest sense30

) by

some scholars (e.g. Ridao Rodrigo 2010: 18, Gibbons and Turell 2008: 1, Beckman

2007: 1, Rathert 2006: 337ff., Olsson 2004: 3, Gibbons 2003: 12). Like Tiersma, I have

opted for the term legal language to refer to the “distinct manner of speaking and

writing that has been developed by just about any legal system throughout the world”

(Tiersma 2008: 7).

In this context it should also be noted that legal language is not a universal term, but

rather as Sandrini (1996: 16) emphasises, each legal system has its own legal

language31

, and therefore it is more appropriate to speak of languages of the law (cf.

30

In its narrow sense forensic linguistics studies language evidence but in its broad sense it studies issues

of language and the law (Gibbons 2003: 12). 31

In this connection it should be mentioned that there is no direct correlation between legal language and

legal system (Kocbek 2006: 235). Some language areas are divided into different legal systems, as is the

30

Pommer 2006: 17, Joseph 1995: 25) (see section 3.1.). Some linguistic features are,

however, assumed to be universal, applying to most languages; although in varying

degrees (cf. Cao 2007: 20). Therefore, in the subsequent sections a general

characterisation of legal language is proposed in terms of lexicon, syntax and style.

4.1.1. Legal lexicon

Most scholars agree that legal language is characterised by a complex and unique

vocabulary32

(Cao 2007: 20, Alcaraz and Hughes 2002a: 16, Borja Albi 2000: 161,

Garzone 2000: 397, Tiersma 2000: 203, Stolze 1992a: 176ff.). One of the main

challenges is the extensive use of legal terminology (Tiersma 2000: 203). In fact, “legal

terminology is the most visible and striking linguistic feature of legal language as a

technical language” (Cao 2007: 53).

Generally speaking, legal terms are often subdivided into three different categories:

1) purely technical terms, 2) semi-technical terms, and 3) common terms with

uncommon meanings (cf. Pasquau Liaño 1996: 14ff., Danet 1985: 279). Examples of

purely technical terms are censo enfiteútico (i.e. copyhold) and acreedor pignoraticio

(i.e. pledge) in Spanish and their Danish equivalents33

arvefæste and håndpanthaver. In

addition to the purely technical terms, legal texts contain semi-technical terms (i.e.

terms derived from law which are commonly used in ordinary language) (Pasquau

Liaño 1996: 15). This applies, for instance, to the word `judgment´ which is often used

in everyday language to refer to a person who quickly jumps to conclusions about other

people, for example, as in “Peter always passes judgment on people he does not know”.

Moreover, legal language consists of non-technical words from ordinary language

(Tiersma 2000: 203). The fact is that legal language is closely linked to ordinary

language as law deals with various aspects of reality, and consequently the legal

profession uses ordinary language as a basis for legal language (Sandrini 1996: 12, 15).

Accordingly, certain expressions in ordinary and legal language may appear identical on

case in the United Kingdom or the USA, and some legal systems use different legal languages (e.g.

Canada and Switzerland). The latter is also the case in Spain (see section 3.1.). 32

The explanation for this unusual vocabulary must be found in the legal system itself as the legal lexicon

results from and reflects the complexity of legal thought and reasoning of the legal system in question

(Cao 2007: 20, Garzone 2000: 397, Smith 1995: 190ff.) (see section 3.1.). 33

An equivalent is a word in the target language which represents the same concept as that of the source

text; i.e. they have the same semantic content (Lundquist 1997: 112, Rogers 1997: 217).

31

the surface (e.g. robo (robbery) and solicitar (request) in Spanish and påstand (claim)

and indrømme (admit) in Danish), but their semantic content varies. Expressions such as

these are referred to as polysemes34

, and they are characteristic of legal language

(Christensen 2003: 158). In some languages, however, strictly legal terms may also be

polysemous. According to a corpus-based study by Tsou and Kwong (2003) strictly

legal terms are polysemous in Chinese. Tsou and Kwong (2003: 613 ff.) examined the

usage of Chinese semantically related legal terms (all related to judgment or the action

of judging) in the legal domain and in general texts. The purpose of the study was to

examine how the preciseness of English legal terms is captured in their Chinese

translations (Kwong and Tsou 2005: 522). The results show that Chinese terms are

often used in very polysemous ways (Tsou and Kwong 2003: 626). For instance, the

same Chinese term is identified as the translation equivalent for `decision´, `verdict´ and

`award´ (Kwong and Tsou 2005: 522). Thus, there may be great differences in the use

of legal terminology from legal system to legal system (see section 3.1.).

Finally, it should be mentioned that an important aspect of legal terminology is its

dynamic nature. Technical terms are subject to changes occurring within the subject

area (Alcaraz and Hughes 2002a: 153). Consequently, even though it is possible to

identify an equivalent in the target language at one point in time, there is no guarantee

that this equivalence continues to exist (Kewley-Draskau 1994: 104).

4.1.2. Legal syntax

Legal language is often described as a highly compressed language consisting of quite

long sentences35

(Cao 2007: 92, Tiersma 2000: 56, Danet 1985: 282). The reason for

this is that legal discourse36

has traditionally been characterised by a very special style

of writing which favours the inclusion of all elements relevant to the line of thought in

one sentence (i.e. main clause and possible subordinate37

clauses) (Tiersma 2000: 56).

In other words, for each rule or provision the legal sentence contains, it typically

34

In translation studies polysemes are often referred to as `false friends´ (see section 3.1.). 35

There are different ways of defining what a sentence is. Like Fabricius-Hansen and Ramm (2008: 4), I

assume in my thesis that sentence boundaries are marked by a full stop in written discourse – with

question and exclamation marks as alternatives. 36

I am not using the word `discourse´ in its narrow linguistic sense of ”language beyond the sentence”,

but rather as ”language use in context” (cf. Chesterman 2007: 176). 37

For a definition see section 8.1.3.

32

includes several conditions and exceptions. In consequence a large quantity of

information is “compressed into a single sentence, which accounts for its length and

grammatical complexity” (Tiersma 2000: 57). In Garzone‟s (2000: 397) words:

“… too often the information load borne by each sentence is extremely heavy, thus giving rise to

remarkable sentence length as well as to very complex syntax, with a high incidence of embedded

clauses, a high level of hypotaxis, frequent resort to left-branching subordinate clauses, recurrence of

syntactic discontinuities.”

Among lawyers it is argued that the single-sentence phenomenon may guard against

ambiguities (Tiersma 2000: 56). Tiersma (2000: 56) for instance comments on the

adherence to the one-sentence rule on the part of legal drafters:

“Legal drafters seem to fear that if they place a condition on a rule in a separate sentence directly

following the statement of the rule, some lawyers will later be free to argue that the condition does

not apply”.

To make matters worse, it is characteristic of legal syntax that all of these conditions

and exceptions precede the main verb. This means that a lot of information is typically

inserted between the subject and the verb (Tiersma 2000: 57). Tiersma gives this

example38

:

“Every person who insures or receives any consideration for insuring for or against the drawing of

any ticket in any lottery whatever, whether drawn or to be drawn within this State or not, or who

receives any valuable consideration upon any agreement to repay any sum, or deliver the same, or

any property, if any lottery ticket or number of any ticket in any lottery shall prove fortunate or

unfortunate, or shall be drawn or not be drawn, at any particular time or in any particular order, or

who promises or agrees to pay any sum of money, or to deliver any goods, things in action, or

property, or to forbear to do anything for the benefit of any person, with or without consideration,

upon any event or contingency dependent on the drawing of any ticket in any lottery, or who

publishes any notice or proposal of any of the purposes aforesaid, is guilty of a misdemeanor”

(Tiersma 2000: 57, my emphasis).

38

Extract from a penal statute from California.

33

As may be seen from my emphasis, a huge amount of information has been inserted

between the subject (every person) and the verb (is guilty).

4.1.3. Legal style

Legal translation scholars generally agree that an impersonal style is a characteristic

feature of legal language (Cao 2007: 22, Šarčević 2000a: 175, Tiersma 2000: 205,

Trosborg 1997b: 13, Stolze 1992a: 177). As a result, legal texts are typically written in

the third person (e.g. the court finds) (Šarčević 2000a: 175, Tiersma 2000: 67).

According to Tiersma (2000: 67) it is more economical to use the third person in

documents such as statutes, as they are supposed to be generally applicable and address

several audiences. Moreover, Tiersma (2000: 68) and Bowers (1989: 30) state that the

use of the third person emphasises the authoritative nature of legal language.

In addition, the impersonal style is typically obtained through the use of the passive

voice and nominalisations (cf. Šarčević 2000a: 177), both of which allow lawyers to

“avoid directly referring to or identifying the person involved or assigning

responsibilities.” (Cao 2007: 94).

Finally, the impersonal style may be obtained by referring to people by means of their

legal role as for instance plaintiff, defendant, testator, guarantor, policy holder etc.,

rather than by their name; an approach typically used in legal texts (Ortega Arjonilla et

al. 1996: 39, von Eyben 1989: 48).

4.1.4. The quest for precision

In the previous sections we have seen that legal language is characterised by a unique

lexicon, syntax and style. What has not been touched upon so far, however, is the reason

why lawyers use such an unusual language. Lawyers often justify the peculiarities of

legal language with a need for precision. The fact is that lawyers strive to obtain the

maximum degree of precision to avoid doubt as to which legal consequences certain

circumstances may give rise to (Martín et al. 1996: 8, Obenaus 1995: 250).

34

Although lawyers strive for precision, legal language is characterised by a certain

amount of linguistic vagueness39

(Bhatia et al. 2005: 9). Most scholars advocate the idea

that linguistic vagueness is a deliberate strategy in legal texts (Cao 2007: 9, Harvey

2002: 181, Tiersma 2000: 80). In Tiersma‟s (2000: 80) words:

“Despite its limitations, vague or flexible language therefore has several functions. It allows a

legislature to use a general term without having to articulate in advance exactly what is included

within it (…). It permits the law to adapt to differing circumstances and communities within a

jurisdiction. And it enables the law to deal with novel situations that are certain to arise in the future,

as well as changing norms and standards”.

Thus, when it comes to legal language there are two conflicting considerations: the

demand for precision and the desire to cover every possible situation (Bhatia et al. 2005:

10, Bhatia 1997: 210).

4.2. Legal language: towards a simpler future?

In most countries legal language has been much slower to adapt to the general language

development than other technical languages (Borja Albi 2000: 11). Nevertheless, over

the past decades there have been several initiatives to further the use of a more simple

legal language in several countries throughout the world (Tiersma 2000: 220-222,

Asprey 1997: 33ff.). Although some m