“Shall”, “may”, “must”, and “should”: Fun with auxiliary verbs!
Kirby Glad, PRP
When drafting bylaws we are often faced with making the correct choice of auxiliary verb, and the correct word makes a big difference. We often use “shall” to make sure something gets done, and this language is suggested in RONR (12th ed.) 56 in the Sample Bylaws but this may not be the right choice.
An auxiliary verb is “A verb used to help form the tenses, aspects voices, and moods of other verbs as will, shall, have, do, be, can, ought, might, would, may”.1
The origins of “shall” from old English are based in the root of “to be indebted” or “to owe”. The past tense of “shall” is “should”, and “should” is far from “must”. As in “That should make you happy”.
There are several usages of “shall” which we will all recognize, including an action intended at a future time, such as “I shall return” which is a bit of a promise (creating a debt) and more like the form of “I will return”. This is certainly a different meaning than “I must return”.
“Shall” is also used for permission. The sentence “shall I invite them?” has the meaning of “may” as in “May I invite them?”. “Shall” is also used to express determination or obligation (there is that root word “to owe” again), or necessity, as in “We shall overcome.”
The meaning of “the treasurer shall disburse funds as approved Chair” could mean “will”, “may”, or “should”, but “the treasurer must disburse funds as approved by the Chair” is a much more clear directive and has only one meaning. Failure to disburse said funds would be non-feasance.
Bryan Garner, the legal writing scholar and editor of Black’s Law Dictionary (ninth edition) wrote that “In most legal instruments, shall violates the presumption of consistency … which is why shall is among the most heavily litigated words in the English language.”
Black’s Law Dictionary lists 5 definitions for “shall” including, “has a duty to”, “should”, “may”, “will”, and “is entitled to”. None of these has the same level of requirement as “must”.
This ambiguity is what is driving the practice of statutory law away from “shall” and towards “must” as the only correct word to express the imperative.
The Supreme Court of the United States has already spoken on this issue in the case of GUTIERREZ de MARTINEZ v. LAMAGNO, 1995. One party argued that “shall” means “must”, which the other party argued that “shall” means “may” or “should”. The court held that “shall” can be ambiguous and is not a clear imperative. As Justice Ruth Bader Ginsburg remarked in the majority opinion, “though shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.”
Consider a court case about a law which says “There shall be a quorum for the committee to do business.”2 A governmental committee entered into a contract when a quorum was not present and suing ensued. One party argued that that “shall” meant there “must” be a quorum, and there being none, the committee did not have the authority to contract. The other side argued that “shall” means “should”, or “has a duty to”, so while the committee could be punished for failing this duty, but that fact has no effect on making a binding contract. The court agreed.
As reported by Jerry Payne of the National Conference of State Legislatures, regarding the use of the word “shall”, “In such cases, courts have held that this use [of “shall”] is merely a legislative aspiration, nothing more.“3
Must is “used to express compulsion obligation, requirement, or necessity”. And while “must” and “shall” can overlap in meaning, “must” is always an unambiguous imperative.
In 2010 the Plain Writing Act was passed by the U.S. Congress directing all drafters of laws and regulations to use “plain language” that could be understood by the citizen of average education. On April 13, 2011, President Obama issues memorandum M-11-154. All federal agencies are referred to the Federal plain language guidelines. (Ironically, the memorandum said all agencies “should follow” the guidelines, not “must”, but after all they are only “guidelines”, like the Pirate Code.)
The Federal plain language guidelines5 III a 1 iv state:
The word “must” is the clearest way to convey to your audience that they have to do something. “Shall” is one of those officious and obsolete words that has encumbered legal style writing for many years. The message that “shall” sends to the audience is, “this is deadly material.” “Shall” is also obsolete. When was the last time you heard it used in everyday speech?
Besides being outdated, “shall” is imprecise. It can indicate either an obligation or a prediction. Dropping “shall” is a major step in making your document more user friendly. Don’t be intimidated by the argument that using “must” will lead to a lawsuit. Many agencies already use the word “must” to convey obligations. The US Courts are eliminating “shall” in favor of “must” in their Rules of Procedure. . .
Instead of using “shall”, use:
“must” for an obligation,
“must not” for a prohibition,
“may” for a discretionary action,
and “should” for a recommendation.
Another recognition of the trend away from “shall” in government regulations is found in the Federal Aviation Administration
Nearly every jurisdiction has held that the word “shall” is confusing because it can also mean “may, will or must.” Legal reference books like the Federal Rules of Civil Procedure no longer use the word “shall.” 6
And if we want to create officers or committees in bylaws, why say, for example, “there shall be four officers in our society” instead of just stating “there are four officers in our society”.
Therefore, “shall” being ambiguous, this author suggests the RONR author team review the use of “shall” in the Sample Bylaws, and that as we parliamentarians strive for more precise language as we advise our clients in drafting of bylaws.
1. Webster’s New World Dictionary of American English, Third College Edition, 1991, Simon & Schuster
2. RELACS Report | The False Imperative, Jery Payne, 12/13/2022 https://www.ncsl.org/legislators-staff/legislative-staff/research-editorial-legal-and-committee-staff/volume-xxvi-issue-2-the-false-imperative.aspx
3. Ibid.
4. Executive Office of the President, OMB, Memorandum M-11-15, par. B 2, April 13, 2011 https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2011/m11-15.pdf, accessed 8/5/2020
5. https://plainlanguage.gov/media/FederalPLGuidelines.pdf , May 2011, accessed 4/30/2024
6. Dr. Bruce V. Corsino, FAA Plain Language Program Manager https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/ 3/12/2020, accessed 8/5/2020