Bryan Garner on Words
Shall We Abandon Shall?
Posted Aug 1, 2012 1:20 AM CSTBy Bryan A. Garner
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.
“Bryan.”
“Shan’t.”
“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.”
“Won’t.”
“Good,
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.
WHAT YOU’RE REALLY SAYING
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.”
IF YOU MUST BE BOSSY
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.
Bryan A.
Garner is
president of LawProse Inc. and editor-in-chief of Black’s Law Dictionary. He is
also the author of Garner’s Dictionary of Legal Usage, Garner’s Modern American
Usage and Making Your Case: The Art of Persuading Judges (with Justice Antonin
Scalia).
Source: http://www.abajournal.com/magazine/article/shall_we_abandon_shall/;
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