Shall or must? recommendations for UK parliament

Parliamentary counsel, also known as parliamentary draftsmen, draft bills for legislation. The latest Drafting Guidance (December 2011) can be downloaded from this page as a PDF file. It’s 84 pages long and deals with many language points. Have a look at the table of contents!

The reading list at the end has two of my favourite books: Butt and Castle on Drafting and Thornton on Legislative Drafting. It also has four weblinks to similar materials in Australia, Canada and the UK.

This useful link comes from a colleague (thanks, Siriol) via Daphne Perry, a lawyer who is the UK representative of Clarity. At the Clarity website, which I must have mentioned at some time in the past nearly ten years of this blog’s life, you can see earlier copies of their journal. A large number of arguments for and against shall and must are given. The conclusion is that shall is used less than it used to be, and some of the current uses in legislation may be where a statute has been amended and the drafters did not want to change the usage where the original used shall.

In relation to translation: one reason to avoid shall which Daphne Perry mentioned is that she heard several Arab lawyers say they were told always to translate ‘shall’ into Arabic as expressing an obligation – but of course, it is used in several other ways too. (I have less of a problem translating into English and using ‘shall’ only to express an obligation).

Particularly interesting on the perennial debate about using ‘shall’ or ‘must’ is a 2008 paper by the Drafting Techniques Groups at parliamentary counsel, another PDF file: Shall. It discusses the non-legal use of shall too. I am not keen on the use of the term ‘simple future’, although I know what they mean. There is reference to the Scottish and Irish reverse the English usage of I/we shall – you/he/she/they will,

E.g. the drowning Scotsman who was left to his fate because he cried “I will drown and no one shall save me!”

but I was surprised to read

But the first person “shall” lingers on in questions like “Shall I make a cup of tea?”

That usage is not ‘simple future’, but modal. But my Northern Irish colleague would understand it as ‘simple future’!

Incidentally, googling for “drafting techniques group” also brings up other papers, for instance on gender-neutral language.

4 thoughts on “Shall or must? recommendations for UK parliament

  1. I recently had a discussion on a related topic with an experienced property lawyer in Scotland. This was prompted by receipt of a copy of the “Combined Standard Clauses” governing property sales in Edinburgh and Glasgow. It’s clear from this document (written by a committee of very eminent lawyers, and updated over several decades) that “shall”, “will” and “must” are used interchangeably. The solicitor I spoke to confirmed that none of the lawyers he knows or has read, including professors of law and judges, seem to bother very much about this sort of linguistic fine-tuning.

    He told me that he himself generally uses “shall” for a requirement, and “will” to denote what he calls an “absolute requirement”. He explained this by saying that an “absolute requirement” is one governed by a time-frame. Examples:

    Requirement: The Seller shall ensure that the property is not subject to any servitudes save as described in the deed of sale.

    Absolute requirement: The Seller will hand over all keys to the property to the Buyer or the Buyer’s agent within two days of the contract being concluded.

    That’s how this lawyer handles the issue himself, and other lawyers may well use “shall” in the second example, and this would also be perfectly legitimate. He told me that a lot depends on the lecturers and tutors lawyers had when they were studying law, and that probably what some people see as “bad habits” get passed from generation to generation of lawyers.

    My conclusion from all this is that translators should aim at ensuring consistency within and between the documents they’re translating, as there are neither prescribed rules nor accepted authorities governing this sort of language, certainly as far as contract drafting is concerned.

    This brings to mind something I was told a few years ago: “Translators tend to be obsessive about citing dictionaries. Lawyers aren’t.”

    • Hi Robin,
      This is all extremely interesting but so much depends on context.
      We are talking about contracts here. How do you translate into English? I use ‘shall’ where an obligation is imposed. Sometimes I use ‘will’, but the users of my translations are not usually from the UK and sometimes they are disturbed by a mixture of ‘will’ and ‘shall’. But as long as the ‘will’ relates to one of the parties it is a promise and as good as ‘shall’. I have certainly seen insurance contracts where ‘will’ was used for the insurer and ‘shall’ for the insured. Anyway, I agree with your Scottish lawyer that they are both OK.

      But I do have a problem with Requirement and Absolute Requirement. I think that is absolute rubbish! They mean exactly the same to me. I have not investigated it further to see if it’s a Scottish peculiarity but I suspect an idiosyncrasy of this man. What do you think?

      As for the statement about dictionaries, I am not sure I understand it. Are you saying we cite dictionaries too much? Surely we are talking about an English text – the lawyer who doesn’t cite dictionaries is writing, not translating. Lots of writers don’t consult dictionaries, and what they write – judging from the texts I get to translate – does not necessarily mean what a dictionary says it does. So I tend to work out from context what something means, although sometimes a legal reference, not necessarily a dictionary has to be consulted. But when do translators cite dictionaries? Presumably when their work has been criticized and they want to shore up their version (rather like the American judges I referred to recently).

      I would like to know what kind of person told you this? Probably a lawyer who didn’t like someone’s translation. The word ‘obsessive’ is a bit loaded, isn’t it? I must say that for myself I don’t feel guilty of over-citing dictionaries. Or do you think we should not be discussing the use of ‘shall’ and ‘will’ and ‘must’ at all, but just be consistent?

      • Hi Margaret,

        Yes, we also generally use “shall” to denote an obligation unless expressly asked to do otherwise by a client. Likewise, I use “shall” to denote a requirement when I’m translating legislation (e.g. the HGB and other German financial legislation).

        I agree that this “requirement” and “absolute requirement” thing is at least idiosyncratic, but I don’t think my lawyer invented it himself. Rather, he’s probably continuing a tradition that stretches far back in time.

        Re the dictionaries: this referred to monolingual (English) dictionaries, not to bilingual dictionaries. I guess I should have mentioned that. What this (European) lawyer, who also has significant translation experience, was saying is that translators are often fixated about what “the dictionary” says, while lawyers aren’t, and that translators tend to believe what they read in dictionaries, and lawyers don’t. I certainly agree that very many translators tend to seize on what a (monolingual or bilingual) dictionary says, often blindly disregarding the actual context or what sheer common sense should be telling them.

        Hope that clears up any misunderstandings!

        Incidentally, I find the “drowning Scotsman” example given in the “Shall.pdf” document rather offensive. Of course we often use “shall” in Scots English where the English would normally use “will”, but that’s demotic usage, not legal drafting, and nobody actually drowned because of it (that’s just a racist English joke). Not quite what I expect to read from the UK’s Parliamentary Counsel Office.

        • Thanks for the details.
          I see the problem with the drowning Scotsman example. I wasn’t really thinking of you in repeating it!

          I know ‘absolute requirement’ as a term, but I don’t see ‘requirement’ as being directory rather than mandatory. But there may be such a practice in certain types of contracts etc. I will leave it at that.

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