Posted Aug 01, 2012 07:20 am CDT
In March 1968 I was a fourth-grader at Rex Reeves Elementary School in Canyon, Texas, a small college town in the Panhandle. My teacher, the beloved Mrs. Pearcy, had a not-beloved student teacher, Mrs. Phillips, who was seeking her teacher certification. Mrs. Phillips, I realized early on, was not partial to me.
One day—it was the ides of March—Mrs. Pearcy announced to the class that Mrs. Phillips would be leading us in a lesson. There was a professor of education in the back of the room, Mrs. Pearcy explained, to observe Mrs. Phillips—who soon took her place at the front of the classroom.
“Children,” Mrs. Phillips said, “today I am going to teach you about contractions.” This struck me as a little silly. We had learned all about contractions in the third grade. “Can anyone name a contraction?”
My hand shot into the air.
“Umm, no. That’s not a word.”
“It is, Mrs. Phillips! It’s a contraction of shall not.”
“No, that’s not a word. Can anyone name a contraction? Craig.”
Other pupils started chiming in:
“Can’t! Isn’t! Doesn’t! Shouldn’t! Wouldn’t! Aren’t!”
“Good, children, good! Those are all contractions—and real words.” She glanced disapprovingly at me with that last remark. I went silent for the rest of that class. I felt flushed. I remember the moment as if it were yesterday.
In the corner of the room, I knew, was a huge dictionary—as it turns out, Webster’s Third New International Dictionary, published in 1961. As soon as class was over, I went to the corner and looked up shan’t. There it was: “shan’t. Contr. Shall not.” I heaved the huge tome off its stand and cheerfully approached Mrs. Phillips to give her the good news.
She was talking to the professor, so I stood by quietly. When they finished speaking, I said: “Look, Mrs. Phillips! It is a word! Shan’t is right here in the dictionary!”
She turned from me and waved her hand behind her back, as if to shoo me away.
“But it’s right here. ...” My enthusiasm melted as she turned back to me and said sternly: “Bryan Garner, that’s not a word. I’m not looking at that. Put the dictionary away and go play. It’s recess now.” So ended one of the most important lessons of my life—the one that would ignite my interest in lexicography. It was also the beginning of my recognition of an anti-intellectual strain in my hometown.
In retrospective fairness, Mrs. Phillips had a point: No American says shan’t. I had heard a television character use it—the very English Mr. French in the 1960s series Family Affair.
Nor do Americans use the positive form, shall, except in two expressions: We shall overcome and Shall we ... ? Otherwise, this modal verb isn’t really a part of normal American English.
Which brings us to legal English, where shall is ubiquitous in contracts, statutes, ordinances, rules and regulations. In the ordinary contract, almost every sentence contains a shall. The U.S. Constitution is chock-full of shalls.
In law school, we learn that shall is “mandatory” and may is “permissive.” There are even statutes enshrining this idea. If you don’t look closely at shall and its semantic content, those statutory provisions seem to make sense.
But let’s do look more closely. What about laws stating that “No person shall ... ?” If shall means “has a duty to” or “is required to,” we have a problem. We’re negating a command to do something: You’re not required to do it (but, by implication, you may if you like).
That’s plainly not the meaning. What is meant is to prohibit altogether—to disallow. Hence it should be “No person may ... .” That is, no person is allowed to do this.
Confronted with a “No person shall” provision, courts routinely hold that shall means may. In every English-speaking jurisdiction that I know of—don’t be so shocked—shall has been held to mean may. As Justice Ruth Bader Ginsburg remarked in a majority opinion: “though shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.”
In the ninth edition of Black’s Law Dictionary, I list five meanings for shall:
shall, vb. (bef. 12c) 1. Has a duty to; more broadly, is required to “the requester shall send notice” “notice shall be sent”. This is the mandatory sense that drafters typically intend and that courts typically uphold. 2. Should (as often interpreted by courts) “all claimants shall request mediation”. 3. May “no person shall enter the building without first signing the roster”. When a negative word such as not or no precedes shall (as in the example in angled bracket), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future tense verb) “the corporation shall then have a period of 30 days to object”. 5. Is entitled to “the secretary shall be reimbursed for all expenses”. Only sense 1 is acceptable under strict standards of drafting.
In short, shall is a chameleon-hued word.
For teachers of legal drafting, there are two main pedagogical approaches today for teaching lawyers and aspiring lawyers about this word: (1) restrict shall to meaning either “has a duty to” or “is required to” (meaning that 40 to 80 percent of the shalls in existing forms will be replaced); or (2) eliminate shall altogether on grounds that lawyers as a group cannot realistically master the semantic subtleties of the word (meaning that 100 percent of shalls get dropped).
When I acted as style consultant to the U.S. Judicial Conference’s Standing Committee on Rules of Practice and Procedure, beginning in the 1990s, the federal judges for whom I worked experimented with the first option, but settled on the second. Hence when I revised the full sets of civil, appellate and criminal federal rules, the shalls were dropped. Rule 10(b) of the Federal Rules of Civil Procedure read like this:
“All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.”
Now it reads like this:
“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence—and each defense other than a denial—must be stated in a separate count or defense.”
With one exception, shall has now been purged from all four major sets of federal rules, including evidence.
What is the exception? With Federal Rule of Civil Procedure 56—the summary judgment rule—the advisory committee confronted warring factions on whether a federal judge must or may award summary judgment upon finding the requisite elements. Initially, the rule was promulgated with a may. But so much rancor ensued that the committee retreated to shall. It issued a note saying, more or less, “We’re not sure whether this rule is mandatory or permissive, so we’re reverting to the ambiguous shall. Let the courts figure it out.”
What about contracts? Isn’t must a bit bossy-sounding in the context of a private agreement? Yes, it is—unless it’s a take-it-or-leave-it consumer contract. If it’s an ordinary bilateral agreement, will is perfectly adequate. “The parties agree as follows,” the lead-in says, and then: “Jones will do this. Smith will do that.”
The advantage of will is that nobody—nobody—misuses this word in any of the myriad ways in which lawyers misuse shall. Nobody writes will instead of may or should or is entitled to. In American English, will is the ordinary verb of promise.
Reflect on how we, as a profession, landed in this semantic snarl of shalls in our documents. Here’s how I reconstruct it. If you grew up in this country, you grew up without shall as part of your working vocabulary. You encountered shall in some of your reading, but you never used it. You did well in school and ultimately enrolled in law school, where you were bombarded by shalls in statutes and contracts. You intuited that shall is “the drafting verb” that makes legal instruments precise.
In fact, it does the opposite. In most legal instruments, shall violates the presumption of consistency: Words are presumed to have a consistent meaning in clause after clause, page after page. Which is why shall is among the most heavily litigated words in the English language (with hopelessly inconsistent court holdings).
My own practice is to delete shall in all legal instruments and to replace it with a clearer word more characteristic of American English: must, will, is, may or the phrase is entitled to. This approach might well please Mrs. Phillips, but shall we consider that factor relevant at all? No we shan’t.