Anaya Nolan
The words must, can, and should are frequently used in laws and legislation, but their interpretation can sometimes be ambiguous and inconsistent. Must, for example, is generally understood as a word of obligation, creating a mandatory rule or prohibition. On the other hand, shall, which is often used interchangeably with must, can have multiple meanings and is considered confusing by many legal professionals. Some drafting guidelines recommend avoiding shall due to its ambiguity, while others continue to use it traditionally. Should, in contrast, often denotes a recommendation rather than a requirement. Understanding the nuances of these words is crucial in legal writing to ensure clarity and consistency in legal documents.
| Characteristics | Values |
|---|---|
| Meaning | "Shall" can mean many things, including "must", "may", "will", and "is". |
| "Must" is a "word of obligation" and is used to express a mandatory rule. | |
| "Should" is a recommendation. | |
| Use in legislation | "Shall" is used in legislation, but is discouraged due to ambiguity. |
| "Must" is preferred in legislation as it is harder to misuse. | |
| Use in contracts | "Shall" is used in contracts to denote strong obligations of the parties in the active voice. |
| "Must" is used in contracts for other obligations, especially those on third parties. |
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What You'll Learn
'Must' is a word of obligation
"Must" is a word of obligation and is used to express a mandatory rule. Its meaning is the same in everyday use as it is in a legal context, making it easily understandable. "Must" is often used in legislation and legislation-type documents to denote requirements and prohibitions. For example, a sentence could read: "X must not be done."
The word "must" is preferred over "shall" in legal documents because "shall" can have multiple meanings and is considered ambiguous. According to Bryan Garner, editor of Black's Law Dictionary, "shall" is one of the most litigated words in the English language. Garner proposes omitting "shall" from legal documents due to its ambiguity. "Shall" can mean not just "must", but also "may", "will", and "is". This can lead to confusion and potential misinterpretation of the law.
In contrast, "must" has a more consistent and specific meaning, making it harder to misuse. When used in a legal context, "must" clearly imposes a legal obligation. For example, a sentence like "Appropriate PPE must be worn based on your healthcare facility's protocols" leaves no room for ambiguity and clearly states what is required.
Some jurisdictions, such as Australia and several Canadian provinces, have amended their Interpretation Acts to specify that "must" is to be interpreted as imperative. This further reinforces the use of "must" as a word of obligation.
While "must" is generally preferred in legal drafting, there may be occasions where "shall" is used to indicate strong obligations between parties in a contract. However, even in these cases, "must" can be used for obligations that cannot be assigned to either party.
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'Shall' is often mandatory but can be ambiguous
"Shall" is often used as a synonym for "must" and both words are considered words of obligation, meaning "mandatory". Law schools traditionally taught that "shall" means "must" in a legal context. However, the word "shall" has been criticised for being ambiguous and outdated. According to legal experts, "shall" is rarely used in everyday conversation and its meaning is often unclear. For example, Justice Ruth Bader Ginsburg wrote in a majority opinion that "legal writers sometimes use, or misuse, 'shall' to mean 'should', 'will' or even 'may'". In the clause, "the Consultant shall provide", "shall" clearly imposes an obligation. However, in the phrase "the parties shall request arbitration", the word has been interpreted by courts to mean "should" rather than "must".
Bryan Garner, editor of Black's Law Dictionary, has proposed omitting "shall" from legal documents altogether. Garner argues that "shall" is one of the most litigated words in the English language due to its ambiguity. He suggests that replacing "shall" with "must" can help clarify the intended meaning. "Must" is a word of obligation that imposes a legal requirement, and its definition is consistent across everyday and legal usage, making it easier to decipher.
The preference for "must" over "shall" is reflected in changes to legal drafting practices. The Federal Aviation Agency, for instance, advised the use of "will" or "must" instead of "shall". The new Federal Rules of Appellate Procedure also use "must" rather than "shall". Additionally, at least three Canadian provinces (British Columbia, Alberta, and Manitoba) have amended their Interpretation Acts to specify that "must" should be interpreted as imperative.
While the use of "shall" is declining in some legal circles, it is still prevalent in laws, codes, and regulations. Many contracts, particularly in architecture and engineering, continue to use "shall" to express requirements or obligations. However, the legal community is gradually recognising the problems associated with "shall" and moving towards clearer and more plain language in legal drafting.
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'Should' is a recommendation
When it comes to the use of "should", "shall", and "must" in legal and official contexts, there is often confusion and debate. While "must" is generally accepted to indicate a mandatory rule or obligation, the usage of "should" is less stringent and can be interpreted as a recommendation. This means that while it is advisable to follow the course of action indicated by "should", there may be some flexibility or alternative options available.
In certain industries and contexts, "should" may still carry a degree of importance and be closely adhered to. However, deviating from a "should" recommendation may, in some cases, require an explanation or justification. For example, in the context of API standards, while "shall" denotes a minimum requirement, "should" still indicates a recommended course of action that is expected to be followed, but with some room for variation.
The interpretation of "should" as a recommendation is further supported by the distinction made between "shall", "should", and "must". "Shall" often signifies a mandatory requirement, although its usage is ambiguous and can lead to confusion. "Must", on the other hand, is a clearer indication of obligation. By contrast, "should" falls on the less obligatory end of the spectrum, indicating a suggestion or preferred course of action.
It is worth noting that the usage of these words can vary across different jurisdictions and organizations. For instance, in some industries or legal contexts, "should" may be interpreted more strictly, while in others, it may carry a more permissive connotation. Additionally, the interpretation of "should" may be influenced by the presence or absence of other words in a sentence or clause, such as must not or may.
In summary, "should" is generally regarded as a recommendation, indicating a preferable or suggested course of action. While it may carry varying degrees of importance depending on the context, it does not impose a mandatory requirement in the same way that "shall" or "must" often do. This interpretation of "should" as a recommendation allows for flexibility and alternative options while still providing guidance or direction.
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'Must not' is the preferred form for prohibitions
The word "must" is a word of obligation and imposes a legal obligation about a mandatory rule. It is used to create requirements and prohibitions. However, when it comes to prohibitions, the preferred form is "X must not" rather than "no X must". This is because the latter form could imply a negative obligation, which may not be the intended meaning.
The use of "must not" in prohibitions is also consistent with the principle of using plain language in legal drafting. Plain language makes it easier for the public to read, understand, and use government communications. Using "must not" in prohibitions is clearer and more straightforward than using "no X must", which could be confusing or ambiguous.
Additionally, the word "shall" is often used interchangeably with "must" in legal documents. However, "shall" has been criticised for being ambiguous and not plain English. According to Bryan Garner, editor of Black's Law Dictionary, "shall" is one of the most litigated words in the English language due to its ambiguous meaning. He proposes omitting it from legal documents altogether. As such, using "must not" instead of "no X shall" is preferable to avoid any ambiguity or confusion.
Furthermore, using "must not" in prohibitions is consistent with the drafting style recommended by common-law jurisdictions. These jurisdictions advise against using "shall" in legislation due to its ambiguity. By using "must not" instead of "no X shall", drafters can adhere to the style guides from these jurisdictions and promote consistency and clarity in legal drafting.
In conclusion, "must not" is the preferred form for prohibitions because it is clearer, more straightforward, and less ambiguous than alternative phrases such as "no X must" or "no X shall". Using "must not" promotes plain language, consistency, and clarity in legal drafting, making it easier for the public to understand and comply with the law.
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'Shall' is used in EU directives
The use of "shall" in legal writing has been a subject of debate. According to Bryan Garner, editor of Black's Law Dictionary, "shall" is one of the most litigated words in the English language. Garner and others object to its use because it is rarely used in conversation, and its meaning can be ambiguous. For instance, "shall" can mean not just "must" and "may", but also "will" and "is". Due to this ambiguity, Garner has proposed omitting "shall" from legal documents altogether.
In the context of EU directives, the word "shall" is used to indicate that a directive is binding on the Member States to whom it is addressed. Article 288 of the Treaty on the Functioning of the European Union states that a directive is binding in terms of the result to be achieved, but the national authorities have the power to decide on the methods to achieve this result.
For example, a directive may set mandatory rest periods and a limit on weekly working time, as in Directive 2003/88/EC on the organisation of working time. However, it is up to each individual Member State to develop its own laws to determine how to apply these rules through a process called "transposition". This involves translating the EU directive into national legislation, and each directive has a deadline for its transposition (generally within 2 years).
To ensure compliance, the Commission monitors the transposition process to make sure it has taken place correctly, completely, and by the necessary deadline. If a country does not transpose a directive, the Commission may initiate infringement proceedings and bring the case before the Court of Justice of the European Union.
Given the ambiguous nature of "shall" and the potential for confusion, some legal drafters have adopted a "shall-less" style in their writing. When interpreting EU directives, it may be helpful to replace "shall" with "must" to understand the intended meaning, as the definition of "must" is the same in everyday and legal use.
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Frequently asked questions
'Must' is a word of obligation and is used to impose a mandatory rule. 'Should', on the other hand, is a recommendation and is not mandatory. 'Shall' is often used interchangeably with 'must' to indicate a mandatory action, but it can also be used as a synonym for 'may', indicating permission.
The word 'shall' is considered ambiguous and confusing due to its multiple meanings. It can mean must, may, will, or is. This ambiguity can lead to misinterpretation and litigation. Official drafting bodies are recognising this issue, and many have adopted a 'shall-less' style, opting for 'must' instead.
The use of 'must' and 'shall' depends on the context and the specific guidelines or conventions of the jurisdiction. In general, 'must' is used to express a mandatory rule or obligation, while 'shall' can be used for strong obligations, especially in the active voice. However, it is essential to maintain consistency and avoid mixing the two.
Yes, alternatives to 'shall' include must and will. 'Must' is generally preferred as it has a clearer meaning and is less likely to be misused. 'Will' can be used for future tense, while 'must' is reserved for obligations, especially those that cannot be assigned to a specific party.
