/ No. 2 July 2013 / Lahousseine Id-youss & Frieda Steurs – Functional Equivalence and Legal Dynamism

Lahousseine Id-youss & Frieda Steurs – Functional Equivalence and Legal Dynamism

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Functional Equivalence and Legal Dynamism

 Lahousseine Id-youss* & Frieda Steurs**

*University of Leuven

** University of Leuven and University of the Free State, Bloemfontein, SA

 Abstract

Functional equivalence is an important translation technique when transferring legal content from a language into another. A functional equivalent emerges as a result of thorough terminological analyses of the corresponding characteristics of equivalent concepts across different legal systems. Established equivalents, however, seem to face serious challenges imposed by inevitable legal dynamism. Legal change targets altering the category structure by expanding or contracting its scope, and thus calling into question any previously established conceptual analyses. Whether legal change occurs within the source or the target legal system, its effects on previous conceptual analyses are unavoidable. As a solution, legal translators should be equipped with adequate terminology management tools that would enable them to keep track of the evolution of the legal field.

 

0. Introduction

The study of legal texts and the transfer of legal material into different languages requires close attention from three different disciplines: First, a study of comparative law is needed, in order to compare legal systems and to clearly delineate the conceptual levels under discussion. Second, we need to focus on the specific aspects of legal translation, as a subset of translation studies and as a specific system of specialised translation. Thirdly and finally, linguistic aspects of legal language have to be considered. In this respect, legal language is understood here as a specific subset of LSP (language for specific purposes).

Legal translation differs from other forms of translation in a number of incisive ways. One is that, unlike general translation, legal translation is the transfer of some legal content from a legal system into another legal system (Cao 2007). Ideally, this distinction should affect translators’ methods and strategies, as they may have to deal with a completely different text type possibly serving a different function. At the micro level, many authors consider the use of functional equivalence to be the best method one could opt for when translating law. This technique is similar to what judges and lawyers do in comparative law when trying to construct the meaning of a given foreign concept. On the basis of the task the concept in question performs in the source legal system, they establish its functional equivalent, i.e. the concept that carries out the same task in the target legal system (Sarcevic, 2000). The benefits and usage of this functional equivalence technique have been widely demonstrated in the literature (cf. Sarcevic, 2000; De Groot, 1991).

Another special feature of legal translation stems from the dynamic nature of law. The dynamic character of law can be attributed largely to the continuous legal change for a variety of social, political, educational or economic reasons. It seems that no country—be it democratic or even autocratic, developed or underdeveloped—can resist dynamic legal change. Each mode of government issues and uses law to serve its intentions and ambitions. Thus, we can safely say that legal change is an inherent characteristic of law.

Such forms of dynamism present legal translators with continuous specific challenges. They need to always keep abreast of any significant legal amendment both in the source and target legal systems to judge whether the terminological choices made in earlier in similar translation projects are still valid in the present situation. Using statically standard bilingual or multilingual glossaries is unfortunately not always helpful. Glossaries or term databases should constantly evolve to reflect this dynamism; otherwise, serious translation errors can occur as a result.

In this article, we would like to discuss the way functional equivalence can be established and the implications of legal change for the stability of any established functional equivalent. The article is structured as follows: The first section introduces the notion of functional equivalence; the second sheds light on the phenomenon of legal change; and finally, the third section—the main contribution of this work—discusses the implications of legal change for established functional equivalents.

1. Functional Equivalence

The term “dynamic equivalence” as introduced by Nida (Nida,1969) was defined by him as “the quality of a translation in which the message of the original text has been so transported into the receptor language that the response of the receptor is essentially like that of the original receptors”. Later on, this term shifted to “functional equivalence” suggesting not just that the equivalence is between the function of the source text in the source culture and the function of the target text (translation) in the target culture, but that “function” can be thought of as a property of the text.

Equivalence is defined on the basis of corresponding conceptual features which depends on the intension of the concept and its position in the conceptual system of the chosen subject field (Sandrini, 1996). In multilingual terminology work, absolute equivalence occurs between two languages if and only if the conceptual system under discussion is completely identical. Apart from this absolute equivalence, most authors refer to at least two cases of partial equivalence: First, two concepts could be overlapping with some corresponding and some differing features. Arntz & Picht (Arntz/Picht, 1989) make a distinction between cases where the overlapping section is large enough to establish equivalence and cases where it is too small. A second case of relative equivalence is assumed where one concept comprises another concept. This is a relation between a subordinate concept and its superordinate concept. However, in the case of the legal domain, it is very hard to decide on which grounds a relative or partial equivalence can be established between two legal systems (Cao,) . The concept of equivalence in multilingual terminology work in the legal field has to be abandoned and replaced by a more flexible notion, that of functional equivalence.

Functional equivalence can be defined as the process of finding the “term designating a concept or institution of the target legal system, having the same function as a particular concept of the source legal system” (Sarcevic, 1989). The process of establishing these correspondences between different legal systems is obviously not a trouble-free task. Cao (2007) argues that searching for absolute identical legal equivalents is pointless. Each system independently evolves in different directions, making it difficult to locate adequate equivalents when translating legal instruments. However, this does not necessarily mean that legal translation is impossible. Legal translation is an undeniable reality. It has always been part of human intellectual work, and it will continue to be so. People from different countries marry each other, enter into contractual obligations with each other, perpetuate crimes against each other, move from one place to another, etc., and theoretically speaking all these activities occur at the borders between different legal systems—and thus require settling from both regions’ legal viewpoints. Settling these matters can only be achieved if proper communication is present, and legal translation steps in at this stage to perform that function.

De Groot (1991) argues that functional equivalence is the ideal technique to translate legal content appropriately. Similarly, Gémar (1995) recommends using the same technique as it makes the target text intelligible to the target reader while still remaining faithful to the source text.

Peter Sandrini (1996) studied the issue of terminology and translation in legal texts thoroughly. The traditional concept of equivalence must be revised, since absolute equivalence is impossible given the differences between national legal systems each with its own ethical principles and political priorities. Comparison on the grounds of a definition by intension becomes difficult because of the indeterminacy of legal concepts which are bound to the moral values of a given society at a certain period. The “tertium comparationis” for comparative terminography has to be found in the function of a concept within the framework of a specific legal solution, be it laws, court decisions, regulations or other legal provisions. In the case of specialised dictionaries and especially in the case of terminological databases, the focus will be on conceptual identification and delineation. This onomasiological approach is very systematic.

As far as the legal subdomain is concerned, the concepts of the source legal system have to be defined and described within that particular conceptual system. Next, the target legal system has to be analysed and equivalences have to be established. The target audience plays an important role in the actual choices to be made. Is the target audience the group of legal specialists, or the customer, the non-specialist? The register and target of the source text as such will also be a determining factor in the whole comparative process.

Identifying the term designating a concept that serves the same function in the target legal system as a particular concept in the source system can be achieved by detailed conceptual analyses of the concept in question in both systems. These analyses are carried out from both semasiological and onomasiological perspectives. On the one hand, the analyst starts with the term in the source legal system and looks up the content it represents, i.e., the concept; and on the other he/she proceeds from that content toward its equivalent or near equivalent content in the target legal system, which in turn leads onomasiologically to locating the linguistic unit representing it (De Groot, 1998) (see the scheme below). The process we have just described in one sentence is unfortunately not as simple as it sounds; the task is a painfully difficult one.

Determining the meaning of a word in general is an extremely complex endeavour. Part of the reason for that lies in the difficulty to provide an unchallenged characterisation of what ‘meaning’ means. Many theories have been advanced to account for this mysterious and slippery thing called “meaning” (Geeraerts, 2009). Unfortunately, up to now, none of them has provided an adequate clue into how semantic information can be characterised (Sahlgren, 2006). Some of those theories go so far as to suggest that words are meaningless, and semantic content is computed on the basis of their contexts only (Evans, 2006). For Bakhtin and Voloshinov and those who followed their lead meaning is relational and negotiated in given contexts. This is alos in line with Wittgenstein’s wariness of abstract definition for its own sake.

When discussing legal lexicography and legal translation, hardly anything can be found in the literature dealing with meaning and definitions. When trying to define a legal concept, the expert in law or the lexicographer working in the legal field will opt for an intuitive approach, trying to describe the legal concept using the most relevant characteristics. These characteristics will be related to form, function and position within the legal system, and the legal effect the concept will have. Although each concept is created with a purpose of being clear and well-defined, fuzziness and ambiguity also prevail in the legal discourse. Analytical definitions, which are usually associated with clear and well-defined concepts, are based on the immediate higher generic concept and list the delimiting characteristics so as to define the concept in question and to clearly delineate it from neighbouring concepts (Cotsoes, 2002). One way of clarifying legal meaning derrived from dictionaries is to use corpus analysis to examine how words are used in context.

The same intricacy faced when determining the meaning of a word in general language, as discussed above, can also be found with respect to legal terms with the additional layer of complexity resulting from the fact that legal meanings acquire legal force by virtue of occurring in a binding legal instrument. This is perhaps the reason why law makers often devote detailed sections to defining what they mean by specific terms that might be open to different interpretations (Cao, 2007).

Alcaraz and Brian (2002) demonstrate that the language used in constituting law is of three types, namely, technical, semi-technical and non-technical. According to them, technical vocabulary is denotative and less open to connotation, and the opposite is true for non-technical vocabulary. The non-technical portion of the legal vocabulary, being part of everyday language, seems to be more difficult to deal with from a semantic point of view. Semi-technical terms come in the middle as they acquire some additional meaning relating to the legal sphere.

The paragraphs above have shown that performing a conceptual analysis of a term with a view to determining its functional equivalent is not an easy undertaking. Apart from the theoretical complications this evokes, the task requires a very detailed knowledge of both source and target legal systems, without which it is virtually impossible to suggest any possible correspondences between the two systems.

A leading experiment in comparative legal terminology is the one performed by the Berlin’s International Institute for Legal and Administrative terminology (Internationales Institut für Rechts – und Verwaltungssprache) cited in Sarcevic (2000). The experiment comprised a series of in-depth terminological studies made by a group of lawyers, whereby specialised areas of law were selected with a source and target legal systems in mind. The first step in these analyses was to identify the concept of the source legal system to be studied and then to break it down into the essential and non-essential features it consists of. Once the constituent features of the concept were clearly described, the researcher then moved on to locate the equivalent concept in the target legal system. The equivalent concept was then analysed in the same way, i.e., its essential and non-essential characteristics were identified and described in preparation for comparison.

The next stage was to match up the constituents of the two concepts in order to judge how similar they are. If all essential characteristics and most non-essential/accidental characteristics are shared, the two concepts are judged to be identical. If they share most essential and some non-essential characteristics, they are said to be similar. Finally, if the two concepts share only some essential and few non-essential characteristics, then they are judged to be non-equivalents. In Sarcevic’s terminology, the above three types of equivalents are termed respectively as near equivalents, partial equivalents, non-equivalents (Sarcevic, 2000). In general terms, once a concept is judged to be non-equivalent, it is excluded from the analysis, and the researcher proceeds to look for an alternative equivalent. For the purpose of this article, the discussion concerns mainly identical and similar equivalents, i.e., the ones that are true candidates for functional equivalence.

Acceptability is another important factor in determining whether a particular concept is indeed a functional equivalent of another (Sarcevic, 2000). In general, it is up to the translator or terminologist to decide which degree of equivalence is to be regarded as a minimum of acceptability. However, we agree with Sarcevic (2000) that the two concepts should share at least the most essential features to be regarded as functional equivalents.

We can refer here to the Dutch language situation which comprises two legal systems, the legal conceptual framework of the Netherlands and the legal conceptual framework of Belgium. In the Belgian context, ‘misdrijf’ is a rather vague collective term that relates to all criminal acts. In the Netherlands, the concept ‘misdrijf’ refers to a relatively severe criminal act, which can be compared to the Belgian ‘misdaad’.

Dutch legal system Belgian Legal system

The conceptual difference between the three labels (B) is defined by the type of punishment the government provides in such cases.

It is clear that the comparison method outlined above, in keeping with Cao’s position on the matter, does not in any way seek to establish absolute equivalents. It is actually near to impossible to find concepts across legal systems that share all essential and all non-essential features. As a result, we content ourselves at best with quantifiers such as “most”, “some”, “few” etc.

Now that the analysis is complete, the researcher can temporarily rejoice at locating the functional equivalent they have been after. Before leaving this train of argument, however, we would like to raise a few critical remarks about these analyses, the first of which relates to the notion of feature/characteristic/constituent. In exact sciences, the characteristic of a concept is determined by rigorous scientific investigations which demonstrate the physical structure of an element and its building blocks. In other words, the constituents of an element are its integral parts, without which it loses its substance. For instance, a square can be defined in terms of the following four features: (I) It is a closed figure; (II) It has four sides; (III) Each side is equal in length; and (IV) It has four equal angles (Green, 2002). If it loses even one of these characteristics, the “square” will lose its meaning altogetherl.

Legal concepts, being part of human sciences, are not expected to behave in the same way as such mathematical notions. Therefore, it is useful to know the source of those legal concepts’ building blocks. Is it the law itself, by means of legal definitions as they appear in some legal instruments? Or are these definitions provided by legal experts: lawyers, judges etc., on the basis of common usage in the profession?

Irrespective of any criticism that might be levelled at this analytical procedure, functional equivalents, up to now, seem to be the best tool for communication between people using different legal systems. The real challenge that this useful technique faces, from our point of view, is of a practical nature, and it arises as a result of legal change as will be demonstrated in the next sections.

2. Legal Change

The nature of law, its functions and sources are all matters of intense debate among legal philosophers many of whom have different theoretical convictions. Each theory characterises this social construct in its own terms. For the purpose of this article, we adopt the positivist conception of law in which it is viewed as a “system of coercible rules and impersonal procedures” (Habermas, 1998). This clear characterisation of law provides us with a ready point of departure: We are talking about legal instruments (statutes, codes, decisions etc.,) issued and enforced by some institutions to serve a particular function. Obviously, we do not in any way say here that positivism is more adequate than any other conception of law in legal philosophy. The important thing, however, is that no author seems to stipulate that law is a static never-changing phenomenon.

Parliaments enact new laws in a daily basis; heads of states and governments pass new decrees and take new decisions. This is so common that we all take it for granted, simply because that is their role. New laws inevitably affect the structure of the legal system. They modify existing categories by restricting or expanding their scope; they clarify ambiguities; or they altogether create new categories which will in turn continue to expand or shrink depending on social forces. A quick diachronic look at any code can perhaps be enough to illustrate these points. For instance, in the recent decades, the notion of “marriage” in Belgium has undergone a great deal of change. The structure of this concept today is completely different from its organisation during the seventies and eighties of the 20th century. Up to the 1st of June 2003, the definition of “marriage” had been seen as a legal union between a man and a woman (husband and wife, respectively). That structure was altered when the Belgian Parliament decided to allow same-sex marriage starting from that date. As a result, the terms ‘husband’ and ‘wife’ have become restricted to areas where the focus is on the relationship between parents and children.

The factors forcing legal change to occur in general are various; some of them are social, and other ones are political, scientific, economic etc. McLaughlin (2011) argues that the world in which we live “constantly evolves”. Human relations as well as relations between different political and social entities undergo continuous transformations, and law changes accordingly, adapting itself to this social dynamism so as to ensure the “rights and freedoms of man” (Saidov, 2003). Different social groups with different ideological, religious and ethnic affiliations have different and sometimes contradictory needs. The group which manages to exercise enough pressure and influence over policy makers often enjoys more privileges compared to other weaker and less organised social groups.

Interestingly, law itself provides ways and procedures to modify itself when necessary. For instance, constitutions, the supreme law upon which all the other laws are based (Kelsen, 1967, cited in Hart, 1983), can always be amended or abolished altogether. At least from an ideal point of view, so long as the people of a particular country wish to change a law, this should be possible. Different democratic countries provide different options in atempting to make this ideal picture possible. It is sometimes achieved through voting for a specific party who promise to introduce the desired change upon winning the elections, or through collecting a specific number of signatures in a petition requesting the parliament to take action as is the case in Switzerland, etc. In non-democratic countries, a revolution is the famous path towards legal change. In general, irrespective of the legal regime in place in a geographic area, legal change seems impossible to resist. Schwartzberg (2009) views “amendment as a fundamental and attractive democratic activity” and rejects the idea that important laws should not be subject to change.

As Fay (2007) nicely puts it “law is in a constant state of flow, ebbing and rising in relation to pressures from many different sources”. Given these ebbs and floods, resulting in changing legal definitions over time and place (Ditmore, 2006), the discussion of concept structure becomes extremely relative and depends heavily on the moment the conceptual analysis takes place.

3. Implications of Legal Change for Functional Equivalence

In the previous sections, we have arrived at the following conclusions. First, identifying a functional equivalent is not an easy task as it stems from rather intricate conceptual analyses. Second, legal dynamism is an unavoidable fact, triggered by various objective and subjective factors. The present section will attempt to bring these two aspects together by shedding light on the implications of legal change for established functional equivalents.

The view that absolute equivalents do not exist seems to be shared by many legal translation theorists (Sandrini 1996, Sarcevic, 2000; Alcaraz & Brian, 2002; Cao, 2007). The requirement of acceptability targets at best finding a near equivalent. Certainly, some might be justifiably satisfied with partial equivalents, but that should really be the dividing line between equivalence and non-equivalence. We agree that clear dividing lines between things are usually difficult to draw; however, this specification is dictated by practical considerations, namely, proper legal translation whose goal is to ensure proper communication, upon which entitlement to certain rights and benefits or deprivation thereof can be based.

When the legal change parameter comes into play, things become even more complex. Functional equivalents, which have been established after the detailed analyses methods discussed earlier and recorded in dictionaries or glossaries, would then seem to face a serious challenge. Any concept that has been altered as a function of legal change, be it by expanding or contracting its scope, especially those that have been already labelled as functional equivalents of other concepts in other foreign legal systems, would come under attack as a result. This change calls into question old conceptual analyses and forces us to reconsider them in the light of the new legal picture. Some essential characteristics might have been introduced, others might have been eliminated; and the same thing is true for non-essential characteristics. Thus, in keeping with the same standards, a non-equivalent might have become a true equivalent; a partial equivalent might have become a near equivalent and vice versa. It goes without saying that the issue of legal dynamism holds true for both sides of the analysis, i.e., source and target legal systems. In other words, since equivalence is bidirectional, irrespective of the side on which the change occurs, previous conceptual analyses will be affected.

Consequently, new conceptual analyses—full or partial depending on the legal change scope—must be undertaken in order to verify whether the balance set by old acceptability norms is still valid for the new situation. If not, new terminological choices must be proposed by taking the new legal reality into account. Any legal translation activity taking place after the occurrence of legal change, in our view, is supposed to be made in conformity with the new concept structure. A delicate situation might occur if the legal document to be translated had been drafted before a law was amended and its translation was needed after the legal change. The question then would be in accordance with which concept structure the legal translator should translate the term at hand. It seems that either option the legal translator takes will give rise to even more complex questions.

This discussion demonstrates clearly that the joy of finding a functional equivalent can unfortunately be troubled at any moment by legal change. At the same time, performing new conceptual analyses whenever the structure of a legal concept is reshaped might not be a good option at least from an economic point of view.

Melby (2012) discusses the use of large quantities of parallel bilingual corpora. Although some expected the use of huge online corpora to make termbases irrelevant and superfluous, this is not the case. Even though bi-text corpora and other large sets of data may prove to be very useful and may provide a lot of contextual information to the user, termbases are very much in demand. A termbase provides a structured repository of linguistic data, enriched with metadata and structured according to particular classification schemes and concept-based analysis. Skilled terminology work and advanced termbases will continue to be in very high demand, as a result of the growing complexity of texts dealing with specialized subject fields. One element of the solution could be to employ appropriate terminology management tools to design adequate term databases. These databases should be easily adaptable whenever a constituent of a definition recorded in the database appears or disappears. In this way, the translator’s tools—dictionaries, glossaries, term databases—will be as dynamic as the law, keeping track of any legal change that might occur.

Another issue is that we might question the language parameter as the primary criterion in these databases related to the legal field. It is perhaps time to adopt the notion of conceptual bi-legal or multi-legal dictionaries instead of bilingual and multilingual dictionaries. Different legal systems might evolve within the same linguistic environment, and yet some form of equivalence must still be established among them, especially as legal systems are national phenomena par excellence.

4. Conclusion

Legal translation distinguishes itself from other types of translation as a result of the coercible and authoritative nature of law. In the case of authenticated legal translation, the translated text becomes a piece of law, and not a mere translation. As a result, legal translators should live up to that serious responsibility by keeping track of any changes affecting the legal system they are dealing with in their translation projects. In this respect, functional equivalents are not stable entities; they are subject to continuous changenage stemming from legal dynamism. In order to assume that responsibility properly, they need to be equipped with easily adaptable tools that would enable them to keep abreast of any relevant changes.

 

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