Shall We Keep Using “Shall” or Must We Stop?

There’s a recent trio of pieces in the Economist’s column on language, Johnson, that should be of interest to lawyers, as they all revolve around that tricky word “shall.” The fuss started when Robert Lane Greene, who edits the column and writes as R.L.G., praised the US government’s Federal Plain Language Guidelines [PDF] for recommending that writers drop “shall” and calling it that “officious and obsolete [word] that has encumbered legal style writing for many years.” That column racked up fifty comments, not all of them approving.

A day later, R.L.G. took another crack at the “shall,” in the light of this criticism. Most of his response had to do with differences between US and British usage, principally the use of “shall” to indicate futurity in the first person: I shall call tomorrow; you will hear from me. As with any aspect of usage, his discriptivist approach made a prescriptivist rule dissolve away — though, these two attitudes towards usage address quite different domains, in my view, and to pit them against each other is a kind of category mistake. But I digress.

Greene’s third sally against “shall” took place squarely in the legal domain, where he prayed in aid Bryan Garner’s 2001 edition of the Dictionary of Modern Legal Usage. Both, essentially, point out how difficult that word is in a legal context, mostly, but not always, conveying obligation. And it’s the “not always” that’s the problem, of course. Greene has Garner conclude that “this word is so confusing, even to many very clever people, that the alternatives are better.”

Garner’s own words (p. 940) put it this way:

One solution to the problem that shall poses is to restrict it to one sense. This solution—called the “American rule” because it is an approach followed by some careful American drafters—is to use shall only to mean “has a duty to.” Under the American rule, only the first of the eight bulleted items above would be correct. The drafter might well say that a party shall send notice, but not that notice shall be sent by the party. (If this “has-a-duty-to” sense is the drafter’s convention, must serves when the subject of the sentence is an inanimate object.) This solution leads to much greater consistency than is generally found in American drafting.

Another solution is the “ABC rule,” so called because, in the late 1980s, it was most strongly advocated by certain Australian, British, and Canadian drafters. The ABC rule holds that legal drafters cannot be trusted to use the word shall under any circumstances. Under this view, lawyers are not educable on the subject of shall, so the only solution is complete abstinence. As a result, the drafter must always choose a more appropriate word: must, may, will, is entitled to, or some other expression.

This view has much to be said for it. American lawyers and judges who try to restrict shall to the sense “has a duty to” find it difficult to apply the convention consistently. Indeed, few lawyers have the semantic acuity to identify correct and incorrect shalls even after a few hours of study. That being so, there can hardly be much hope of the profession’s using shall consistently.

Small wonder, then, that the ABC rule has fast been gaining ground in the U.S. For example, the federal government’s Style Subcommittee—part of the Standing Committee on Rules of Practice and Procedure—a subcommittee that since 1991 has worked on all amendments to the various sets of federal court rules, adopted this approach, disallowing shall, in late 1992. (This came after a year of using shall only to impose a duty on the subject of the verb.) As a result, the rules have become sharper because the drafters are invariably forced into thinking more clearly and specifically about meaning.

Whatever your personal drafting preferences, the Johnson column, the US PLAIN guidelines, and, of course, Garner’s book are valuable reads. I won’t say you must read them, but I think you ought to.

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Comments

  1. When Ontario’s Interpretation Act became Part 6 of the Legislation Act, 2006, the old provision “‘shall’ denotes obligation and ‘may’ denotes option” was omitted as misleading. Ruth Sullivan’s text has several pages on how many ways there are to find another meaning to those terms – perhaps like Garner’s, I don’t have his text available to check.

    Ontario statutes still use ‘shall’ mainly to denote obligation, and Ontario has careful drafters, but the presumptive rule of interpretation is gone because it was no real help.

  2. Simon: The utility of shall depends on what kind of writing you’re dealing with. Given the limited use of shall in everyday English and the hopelessness of the first-person/third-person distinction between shall and will, I’m all in favor of dropping shall for purposes of statutes and consumer documents.

    But as I explain at length in chapter 2 of my book A Manual of Style for Contract Drafting, using shall in contracts to express obligations imposed on the subject of the sentence is both the most rigorous approach and the most expedient approach. Lawyers drastically overuse shall, but as a solution, getting rid of shall requires that you throw the baby out with the bathwater. Far better that lawyers become attuned to the nuances of verb use; my book provides a framework for that.

    The account in my book is an expanded form of my New York Law Journal article Making Sense of “Shall”; go here for a PDF copy.

    Ken

  3. The book I use as a text in teaching legal writing to Law students (Wydick, Plain English for Lawyers5th edition) advocates the approach used in the British Commonwealth to get rid of shall altogether, consistent with Ken’s approach above, as it creates too many ambiguities; Wydick suggests the following usage:

    must = required to
    must not = is required not to; is disallowed
    may = has permission to; is permitted to
    may not = is not permitted to; is disallowed from
    is entitled to = has a right to
    should = ought to
    will =
    1.to express a future contingency
    2.in adhesion contract, to express the strong parties intentions
    3. in a delicate contract between equals, to express both parties’ obligations

    Makes good sense; so I shall not change unless I hear a convincing argument otherwise.

    Neil

  4. It is sad that so many developments in colloquial English diminish the precision on the language. When “reticent” becomes a synonym for “reluctant”, we lose a word to describe a particular character trait. Perhaps those who now so casually use “reticent” when they should say “reluctant” are not the kind of people who would ever have noticed or described the shy person, unwilling to put him- or herself forward, but those of us who do, can’t now be sure that our meaning is clear.

    The same degradation has now struck “shall”. Of course, words will always be misused. I once saw an advertisement for a house which stated, “Warmth eludes this house,” when it was obvious that what the writer meant to say was that “this house exudes warmth”. Does this instance justify not using either verb?

    “Must” is not a synonym for “shall”. “Must” will often be used with a condition: “The City’s approval must be obtained before …”. There is no obligation on the city; but its approval is a condition of the transaction. Even if a party must do something, the word “must” may not express an obligation; it might just refer to an action which, if not performed, merely gives the other party an excuse for its nonperformance. On the other hand, if a party shall do something, that defines an obligation.

    I am acutely conscious of the odd first person/third person distinction and I accept that it is probable that that distinction will soon disappear, if it hasn’t already. That fact, however, says nothing about the continued use of “shall” as expressing the imperative voice. In drafting, it’s not hard to (and hard not to) use the lovely, neat and precise pair, “shall” and “may”, as exactly expressing either an obligation or a permission. Why would anyone want to complicate the language and and lose the ability to employ such neatness of expression?

  5. There is no problem at all with using ‘shall’ in a contract – you just have to use it consistently.

    When used in a contract, it creates an obligation. The only time to use it is when ‘shall’ = ‘has a duty to’.

    If you want an impersonal imperative, then use must – so “all notices must be in writing”; “to be valid, a notice must contain / be served on / at” etc.

    You then keep ‘will’ to express the future tense (and when you draft a document as ‘continually speaking’, it’s pretty rare that you need the future tense).

    And if you want to say “if the vendor shall have failed to observe or perform the obligations in clause [blob]” you have rather more problems with your drafing than poor use of ‘shall’.

    After that:

    ‘Shall not’ = ‘has a duty not to’

    ‘May’ = has a discretion to do something’

    ‘May not’ is quite tricky. It’s not that common to need to negate a discretion in a contract – more often than not, if you think you want to say ‘may not’, you actually need to say ‘shall not’.

    You don’t need ‘may’ for the subjective mood – that’s all about possibility, doubt and ambiguity, and has a place in fine writing, but not in a contract.

    ‘Should’ has no place in a contract either – parties need to know if they can or can’t do something and what happens if they do/don’t.