<\/p>\n
\u201cShall\u201d, \u201cmay\u201d, \u201cmust\u201d, and \u201cshould\u201d: Fun with auxiliary verbs!
Kirby Glad, PRP<\/p>\n
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 \u201cshall\u201d 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.<\/p>\n
An auxiliary verb is \u201cA 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\u201d.1<\/p>\n
The origins of \u201cshall\u201d from old English are based in the root of \u201cto be indebted\u201d or \u201cto owe\u201d. The past tense of \u201cshall\u201d is \u201cshould\u201d, and \u201cshould\u201d is far from \u201cmust\u201d. As in \u201cThat should make you happy\u201d.<\/p>\n
There are several usages of \u201cshall\u201d which we will all recognize, including an action intended at a future time, such as \u201cI shall return\u201d which is a bit of a promise (creating a debt) and more like the form of \u201cI will return\u201d. This is certainly a different meaning than \u201cI must return\u201d.<\/p>\n
\u201cShall\u201d is also used for permission. The sentence \u201cshall I invite them?\u201d has the meaning of \u201cmay\u201d as in \u201cMay I invite them?\u201d. \u201cShall\u201d is also used to express determination or obligation (there is that root word \u201cto owe\u201d again), or necessity, as in \u201cWe shall overcome.\u201d<\/p>\n
The meaning of \u201cthe treasurer shall disburse funds as approved Chair\u201d could mean \u201cwill\u201d, \u201cmay\u201d, or \u201cshould\u201d, but \u201cthe treasurer must disburse funds as approved by the Chair\u201d is a much more clear directive and has only one meaning. Failure to disburse said funds would be non-feasance.<\/p>\n
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 \u2026 which is why shall is among the most heavily litigated words in the English language.”<\/p>\n
Black\u2019s Law Dictionary lists 5 definitions for \u201cshall\u201d including, \u201chas a duty to\u201d, \u201cshould\u201d, \u201cmay\u201d, \u201cwill\u201d, and \u201cis entitled to\u201d. None of these has the same level of requirement as \u201cmust\u201d.<\/p>\n
This ambiguity is what is driving the practice of statutory law away from \u201cshall\u201d and towards \u201cmust\u201d as the only correct word to express the imperative.<\/p>\n
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 \u201cshall\u201d means \u201cmust\u201d, which the other party argued that \u201cshall\u201d means \u201cmay\u201d or \u201cshould\u201d. The court held that \u201cshall\u201d can be ambiguous and is not a clear imperative. As Justice Ruth Bader Ginsburg remarked in the majority opinion, \u201cthough shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may.\u201d<\/p>\n
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 \u201cshall\u201d meant there \u201cmust\u201d be a quorum, and there being none, the committee did not have the authority to contract. The other side argued that \u201cshall\u201d means \u201cshould\u201d, or \u201chas a duty to\u201d, 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.<\/p>\n
As reported by Jerry Payne of the National Conference of State Legislatures, regarding the use of the word \u201cshall\u201d, \u201cIn such cases, courts have held that this use [of \u201cshall\u201d] is merely a legislative aspiration, nothing more.\u201c3
Must is \u201cused to express compulsion obligation, requirement, or necessity\u201d. And while \u201cmust\u201d and \u201cshall\u201d can overlap in meaning, \u201cmust\u201d is always an unambiguous imperative.<\/p>\n
In 2010 the Plain Writing Act was passed by the U.S. Congress directing all drafters of laws and regulations to use \u201cplain language\u201d 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 \u201cshould follow\u201d the guidelines, not \u201cmust\u201d, but after all they are only \u201cguidelines\u201d, like the Pirate Code.)<\/p>\n
The Federal plain language guidelines5 III a 1 iv state:
The word \u201cmust\u201d is the clearest way to convey to your audience that they have to do something. \u201cShall\u201d is one of those officious and obsolete words that has encumbered legal style writing for many years. The message that \u201cshall\u201d sends to the audience is, \u201cthis is deadly material.\u201d \u201cShall\u201d is also obsolete. When was the last time you heard it used in everyday speech?<\/p>\n
Besides being outdated, \u201cshall\u201d is imprecise. It can indicate either an obligation or a prediction. Dropping \u201cshall\u201d is a major step in making your document more user friendly. Don\u2019t be intimidated by the argument that using \u201cmust\u201d will lead to a lawsuit. Many agencies already use the word \u201cmust\u201d to convey obligations. The US Courts are eliminating \u201cshall\u201d in favor of \u201cmust\u201d in their Rules of Procedure. . .
Instead of using \u201cshall\u201d, use:
\u201cmust\u201d for an obligation,
\u201cmust not\u201d for a prohibition,
\u201cmay\u201d for a discretionary action,
and \u201cshould\u201d for a recommendation.<\/p>\n
Another recognition of the trend away from \u201cshall\u201d in government regulations is found in the Federal Aviation Administration<\/p>\n
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<\/p>\n
And if we want to create officers or committees in bylaws, why say, for example, \u201cthere shall be four officers in our society\u201d instead of just stating \u201cthere are four officers in our society\u201d.<\/p>\n
Therefore, \u201cshall\u201d being ambiguous, this author suggests the RONR author team review the use of \u201cshall\u201d in the Sample Bylaws, and that as we parliamentarians strive for more precise language as we advise our clients in drafting of bylaws.<\/p>\n
1. Webster\u2019s New World Dictionary of American English, Third College Edition, 1991, Simon & Schuster<\/p>\n
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<\/p>\n
3. Ibid.<\/p>\n
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<\/p>\n
5. https:\/\/plainlanguage.gov\/media\/FederalPLGuidelines.pdf , May 2011, accessed 4\/30\/2024<\/p>\n
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<\/p>[\/et_pb_text][\/et_pb_column][\/et_pb_row][\/et_pb_section]\n","protected":false},"excerpt":{"rendered":"
\u201cShall\u201d, \u201cmay\u201d, \u201cmust\u201d, and \u201cshould\u201d: 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 \u201cshall\u201d to make sure something gets done, and this language is suggested in RONR (12th ed.) 56 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[1],"tags":[],"class_list":["post-506","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\n