The translation of judgments

730 Pages·2011·3.66 MB·English

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
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.

1
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
2
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
3