To Use or Not to Use Shall: Current Debate on Shall in Legal Texts
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To Use or Not to Use Shall: Current Debate on Shall in Legal Texts Eva Dvořáková ABSTRACT: In the context of plain language efforts, shall in legal texts has been vigorously targeted and criticized for being archaic and ambiguous. Consequently, language planning experts have sought its complete suppression or a“disciplined use” in public and private legal documents and across jurisdictions. At the same time, appropriate substitutes have had to be found to replace shall, most of them posing certain difficulties. This paper outlines the current debate surrounding the use of shall in legal texts and discusses the substitution strategies deployed in the countries where shall has been removed from certain legal texts altogether or where it has been used only sporadically. The second part of the paper presents synchronic and diachronic corpus-based research into the use of shall in UK legislation, EU legislation, and British contracts (in comparison to Australian contracts) to find out to what extent the plain language efforts targeting shall have been successful in private legal documents and whether the substitutes deployed in legislation are of any use in private documents. The results show substantial differences across genres and jurisdictions. Overall, it appears that the term “modal revolution” coined by Christopher Williams aptly describes the current situation. ABSTRAKT: Vkontextu snah osrozumitelnou komunikaci se vanglicky mluvícím prostředí věnuje velká pozornost slovesu shall, které je obecně kritizováno pro svoji archaičnost advojznačnost. Ztoho důvodu usilují odborné kruhy vposlední době oto, aby se toto sloveso ve veřejných isoukromých právních dokumentech nepoužívalo vůbec, nebo jen smírou. Ktomu je ovšem zapotřebí najít kshall vhodné alternativy, přičemž žádná znavrhovaných možností není zcela bezproblémová. Tento článek nastiňuje současnou odbornou debatu oshall vprávním jazyce arozebírá jednotlivé substituční strategie, ke kterým se přistoupilo vzemích, kde se shall vurčitých žánrech již nepoužívá vůbec, nebo jen sporadicky. Vdruhé části článku uvádíme výsledky synchronního adiachronního korpusového výzkumu, který byl zaměřen na výskyt shall vbritské legislativě, vprávních předpisech EU avbritských smlouvách (vporovnání saustralskými smlouvami). Cílem bylo zjistit, do jaké míry se dlouhodobé snahy osrozumitelnější komunikaci vanglicky mluvících zemích projevily vsoukromých právních dokumentech azda se substituční strategie používané vlegislativě uplatňují rovněž ve smlouvách. Výsledky ukazují velkou různorodost mezi jednotlivými žánry izeměmi. Obecně se zdá, že stávající situaci ohledně shall dobře vystihuje Williamsův termín „modální revoluce“. KEY WORDS / KLÍČOVÁ SLOVA: shall, modal revolution, plain language, contracts, substitution strategies shall, modální revoluce, srozumitelná komunikace, smlouvy, substituční strategie OPEN ACCESS
8 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 1 INTRODUCTION For many people the word shall is atypical feature of legal language. According to Kimble (1992, p.61), “shall is the most important word in the world of legal drafting” and “shall is the most misused word in the legal vocabulary”. Few lawyers can imagine drafting contracts or legislation without using shall. Yet over the last decades, shall has been vigorously targeted by plain language exponents for being archaic and ambiguous and thus unfit for modern legal texts. For example, according to Butt (2018, p.565), “[s]hall has had its day”, and Asprey (1992, p.79) suggests abandoning shall altogether. This is part of the general trend that “the language of the law should not be different without areason” (Mellinkoff, 1963, p.285). If the word shall is rarely used in general English now (only in British English in the 1st person to denote futurity and in suggestions), its position in legal language should arguably be re-evaluated. Interestingly, Mellinkoff as the forefather of the plain language movement and avigorous critic of traditional legal language did not seem to mind shall much. He even used it in his improved version of alease provision (Mellinkoff, 1963, p.388). Nevertheless, the current climate in legislative drafting does not seem to favour shall, which has led Williams (2012, p.363) to call the current dynamic situation a“modal revolution”— “certain modal auxiliaries cease to be used altogether while others may suddenly take on anew lease of life” (ibid., p.356). This paper aims to outline the current debate on shall, focusing in particular on the problematic characteristics of the word and possible substitution strategies. These theoretical considerations will be supported by synchronic and diachronic research into the use of shall in legislation (British and EU legislation) and contracts. While the use of shall in legislation has been already explored in some detail (Garzone, 2013a, 2013b; Williams, 2006, 2012), private documents, such as contracts, remain rather under-researched, most probably due to practical difficulties. While legislation is widely available, private documents are normally kept private. Yet it would be interesting to see whether the changes that have been occurring worldwide as aresult of plain language efforts (namely the suppression of shall in the legislation of some jurisdictions) have had any measurable impact on the language of contracts as well. 1.1 CRITICISM OF SHALL The criticism of shall is wide-ranging, mostly concentrating on its ambiguity in legal contexts. According to Xanthaki (2013, p.115), “[shall] is one of the most ambiguous terms in legislative writing”. Garner (2001, p.939) sees the problem in the consistency of meaning: “… aword used repeatedly in agiven context is presumed to bear the same meaning throughout”. Butt (2014, p.266) warns against an “uncritical use” of shall and provides numerous examples of court decisions where the judges had to interpret shall. Garner provides an outline of the typical meanings of shall in legal texts (2001, p.940):1 1 See also Butt (2018, p.565). OPEN ACCESS
EVA DVOřáKOVá 9 1. to impose an obligation (“The tenant shall keep the premises in good condition …”), 2. to grant aright (“The tenant shall be entitled to …”), 3. to impose acondition precedent / subsequent (“If the tenant shall give notice to the landlord …”), 4. to state afact or assumption (“The fixtures … shall be deemed to be tenant’s fixtures”), and 5. to denote futurity (“The right … shall terminate at the end of the lease”). The last item (denoting futurity) has become controversial. For example, Garzone (2013b, p.72) claims that pure futurity should be expressed through shall only in the first person, because in the second and third persons it has adeontic meaning, and it is true that the first person is rare in legal texts. In addition, the temporal framework of legal documents operates differently than in the real world, where time is divided into past, present, and future. Legal documents refer to ahypothetical world ( Williams, 2012, p.357) and consequently, the temporal framework displays certain peculiarities. For example, there are few references to the past in operative legal documents (except in judgments), and while all English modal verbs “look to the future for fulfilment” (Fries, 1927 as cited in Garzone, 2013a, p.97), the element of futurity is generally combined with deontic modality. Modern legislative texts in some English-speaking countries are drafted in the present tense (which can be seen as convergence to civil law countries), but this present tense implicitly carries deontic modality. An extra difficulty is added by the difference between the encoding time and the decoding/reference time (Fillmore, 1971, p.229), where, for example, the legislative drafters are writing their text with futurity in mind, and the text takes effect only after its promulgation and then it operates hypothetically in the present tense: “[ Barbara] Child explains how the novice drafter finds it unnatural to write in the present tense while thinking about the future, but the drafter must learn to think in terms of the time when the statute is read.” (Trosborg, 1997, p.137). The ambiguity of shall has been aptly demonstrated by Butt (2014, p.264) in the Hong Kong case of HKSAR vMa Wai-kwan. Aprovision in the Hong Kong’s Basic Law was considered ambiguous because of an unclear meaning of the word shall. Article 160 stated: “Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as the laws of the Region…”. The question was whether it was necessary to formally adopt the laws or whether they would become the laws of the newly established region automatically. The court chose the latter interpretation. According to Kimble (1992), the only correct use of shall is the imposition of aduty, and the other uses are incorrect. The incorrect uses can be exemplified by the following examples (ibid., pp.64–66): 1. “The law of Michigan shall govern this contract.”; 2. “If the tenant shall not pay the rent on time, the landlord may charge alate fee.”; 3. “There shall be created aDepartment of Plain English.”; 4. “The employee shall receive $40,000 ayear.” OPEN ACCESS
10 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 The test for the correct use of shall is the “has aduty” test (Kimble, 1992, p.64; Adams, 2017, p.58), implying that shall should be used only in situations where it can be substituted with the expression “has aduty”.2 As this approach has become popular in the US,3 Garner (2001, p.940) calls it the “American rule”. Yet lawyers seem to be struggling with aconsistent application of this rule (ibid.), and thus the “ABC” rule seeking the complete abandonment of shall has become popular in the US too (ABC— Australian, British, and Canadian drafters, suggesting the geographical spread of this approach (ibid.)). Other authors have noted certain syntactic aspects, for example that shall is redundant in subordinate clauses, such as in the sentence “The Minister of Finance shall appoint all such officers, clerks and servants as shall be necessary for the purposes of this Act …” (Williams, 2006, p.241). In addition, while shall has been weeded out from the legislative texts of several countries,4 it may still thrive in other genres, for example in contracts. In this regard, Adams (2014) has taken amore nuanced position towards shall in his article Banishing Shall from Business Contracts: Throwing the Baby out with the Bathwater. While he acknowledges that some countries, such as Australia, “have gone further than others in purging shall from their contracts” (ibid., p.13), he nevertheless makes the case for a“disciplined use of shall”, in line with the “has aduty” test, because total elimination of this modal verb causes several additional problems, for example with regard to appropriate substitutes. At the same time, Adams recommends asubtler approach to the potential readership; he calls for adisciplined use of shall in business contracts, but he would not use it in consumer documents. In his iconic Manual of Style for Contract Drafting, Adams (2017, p.60) claims the following: It might be agood idea to eliminate shall from court rules, statutes, and consumer contracts, but it doesn’t automatically follow that the same approach should be applied to business contracts— they serve adifferent function and address adifferent audience. Instead, banning shall from business contracts offers only modest benefits, and they’re outweighed by the drawbacks. Apparently, the “has aduty” test requires an animate subject. Yet Garzone (2013a, p.98) has challenged this “exclusively prescriptive interpretation of shall” according to which other uses are considered incorrect. Garzone (ibid.) claims that this reasoning is “based on the false premise that shall in itself is purely deontic”, arguing that 2 See also Drafting Techniques Group (2008, p.16), who quote Driedger (1957): “The word shall in astatute almost invariably is pure imperative, and where it is not it is usually meaningless.”. 3 But some other jurisdictions have adopted this approach too. For example, Ireland: “the Irish Revenue Guide to the Legislative Process says that shall may be used for duties, but not in anon-mandatory sense (e.g. ‘is guilty of an offenceʼ not ‘shall be guilty of an offenceʼ)” (Drafting Techniques Group, 2008, p.9). 4 For an overview of plain language initiatives which have contributed to shall-free legislation, see Williams (2015). OPEN ACCESS
EVA DVOřáKOVá 11 shall can also have adistinct performative meaning. She gives the following examples: “The declaration shall apply … to all supplies …”; “There shall be abody corporate to be known as the Charity Commission …” (ibid., p.99). In these cases, the word shall helps to change the world by authoritatively stating certain things. Garzone notes that lawyers know this property from their legal practice as “constitutive”. Presumably, one could think of adivorce proceeding where the judge’s decision changes the legal status of two persons by authoritatively declaring them divorced. In legal documents, this phenomenon can be observed in the definitions section where acertain meaning is authoritatively ascribed to acertain word, irrespective of whether it is the ordinary meaning of such word. Nevertheless, the prescriptive element is present as well, as suggested by Garzone (ibid., p.100): “in the case of shall, adeontic and performative component co-exist”. In fact, in the case of definitions, the obligation has been imposed on the addressees to interpret aword in acertain way, and at the same time the phrase shall mean creates areality in which acertain word has acertain meaning.5 Overall, this reasoning introduced by Garzone adds another dimension to the debate on the ambiguity of shall in legal documents. In addition, it can help to explain the ambiguity of shall in the Hong Kong case mentioned above (HKSAR vMa Wai-kwan). One interpretation could be called prescriptive (aduty is imposed on the relevant bodies to formally adopt the laws), and the second constitutive (it is authoritatively stated that the laws will automatically become the laws of the new region). 1.2 SPEECH ACTS The constitutive/performative meaning is closely connected with speech acts. Speech acts are realised by means of explicit and implicit performative verbs.6 While explicit performative verbs are used in the basic structure (e.g., “Iorder that …”), implicit performative verbs can be paraphrased in the basic structure (e.g., “You must go now” = “Iorder you to go”), and they include the verb shall (Kurzon, 1986, p.20). Legal texts, such as legislation, can contain numerous speech acts which are controlled by asingle “master speech act” expressed through the enacting formula at the beginning of astatute (“Be it enacted …”) (ibid., p.16). Presumably, asimilar master speech act can be found in contracts. In our contract corpus, there were several alternative versions, for example, “It is agreed as follows”. Aslightly different approach is pursued by Adams (2017). In his view, a“lead-in” in acontract, which can be expressed as “The parties agree as follows”, does not belong to language of performance, but to language of agreement. He does not recommend using hereby7 in alead-in, claiming that the sentence “The parties hereby enter into this agreement” is unacceptable because it can be paraphrased as “The parties by this agreement enter into this agreement”, which does not make much sense (ibid., p.35). In addition to language of performance and agreement, Adams also distinguishes 5 See also “language of performance” in Adams (2017, p.54), which is directly connected with “achange of status of aperson or thing”. 6 Austin (1976). 7 The word hereby is often seen as a“afurther test of performativity” (Kurzon, 1986, p.38). OPEN ACCESS
12 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 language of obligation (where he places shall which passes the “has aduty” test), language of discretion, prohibition, and policy. It seems that Adams, having adapted the theory of speech acts to contract language, recognizes solely explicit performative verbs (in Austin’s terminology) as capable of creating speech acts, while Kurzon sees speech acts in broader terms, and considers as “performative” also an utterance that contains implicit performative verbs. In this way, while Adams does not consider the lead-in sentence “The parties agree as follows” as aperformative utterance because of his formal criteria, the speech act theory advanced by Kurzon would arguably classify such asentence as amaster speech act in the same way as it classified as amaster speech act an enacting formula in astatute. Speech acts can help to explain the current plain language efforts to replace shall with more suitable alternatives. According to Searle (1969, p.22), “[t]alking is performing acts according to rules” and since legal texts are intended to be read by non-experts as well, the readers may struggle with the conventionalised use of shall that may be clear to lawyers, but unfamiliar to non-experts. Consequently, aspecific speech act may become defective because it will fail to produce the desired effect. Yet the word shall can also contribute to the success of aspeech act in that it indicates that the speaker is in aposition of authority over the hearer (Kurzon, 1986, p.8), which is one of the felicity conditions described by Searle (1969, p.64). In this way, the speaker “guarantees that the proposed action be undertaken, since he has the authority to issue such orders” (Kurzon, 1986, p.21). The power to enforce fulfilment has been noted by Garzone (2013a, p.107) as well: “shall not only imposes an obligation, but also guarantees that the obligation is fulfilled”. This aspect of shall has some consequences for potential substitutes, for instance the present tense, which does not have these features. In addition, shall creates ambiguity, as it is capable of expressing various types of illocutionary force, ranging from directives (imposing an obligation), commissives (making promises in contracts), to declarations (e.g., definitions). The current efforts to suppress/limit shall can thus be understood, in the context of speech acts, as an effort to express the illocutionary force less ambiguously in various ways, rather than having shall as auniversal device. In this way, directives can be expressed through must, commissives can be signalled by will (as proposed by Garner), and the present tense can be used in declarations. The speech act perspective can also shed new light on the “has aduty” test, which serves as acriterion to determine the suitability of shall according to the “American rule” (Garner, 2001, p.940). Kurzon (1986) argues that from the perspective of speech acts, the following sentences are not identical: a) “The Director shall give to the Committee …” b) “The Director has the duty to give to the Committee …” While the first sentence has the illocutionary force of an order, the second sentence “is the result of an order having been given. It is in fact adescription of astate of affairs”. In other words, it is astatement (ibid., p.21). Sentence b) does not meet the criteria for aspeech act: it can be true or false and it cannot be paraphrased with the OPEN ACCESS
EVA DVOřáKOVá 13 word hereby. Nevertheless, it could be argued that both alternatives ultimately have the same legal effect. 1.3 OTHER FUNCTIONS OF SHALL: THE DEGREE OF DUTY Even if we accept the imposition of an obligation as the only correct meaning of shall, it can cause problems. According to Kimble (1992, p.61), what can give rise to litigation is the “degree of duty”. In other words, what happens if the imposed duty has not been fulfilled? This issue is probably beyond our linguistic scope, but somehow it is present in the semantics of shall. Trosborg (1997, p.61) quotes Bülow-Møller: “The special use of shall is one of the most characteristic markers of the legal register; it means not only ‘Do Xʼ, but also ‘If you don’t, we have sanctionsʼ.”. Kimble (1992, pp.73–74) considers cases where the failure to comply can bring about the invalidity of proceedings, or the compliance can be compelled. Drawing on Kimble, Garner (2001, p.941) voices the same concern: “Amajor cause of litigation over shall … is the relative strength of the word.”. Butt (2014, p.268) formulates this issue as the distinction between direction and obligation, which can both be expressed by means of shall. While an obligation is enforceable, directory provisions require certain actions but do not impose any sanctions for the breach. 1.4 SUBSTITUTION OF SHALL The criticism of shall in legal texts has led scholars to search for alternatives. Some scholars admit difficulties in finding one satisfactory word that would be capable of performing all the functions of shall.8 Garzone (2013a, p.115) seems rather sceptical about the substitutes and their equivalence to shall: “the replacement of shall with other forms capable of performing (more or less) the same functions does not always bring areal improvement”. Williams (2006, p.242) identifies four options as alternatives to shall in legislation: must, the be to construction, the indicative present, and may (in its negative form may not). Given the obligative meaning of shall, most people would use must as the most plausible alternative to shall.9 The obvious advantage over shall is that it is well-known to non-experts and has no legalistic and archaic connotations. Yet “some drafters consider must inappropriately bossy” (Garner, 2001, p.941).10 Garner gives an example of two large companies that would be probably unwilling to use must in their contract to set out their mutual obligations. In his view, the word will would be preferred. By contrast, must would be, according to Garner, appropriate in aso-called 8 See Adams (2014, p.12): “those who wish to banish shall don’t agree on what to use instead”. 9 “Must is the obvious alternative to shall when imposing obligations.” (Drafting Techniques Group, 2008) 10 See also Butt (2014, p.271): “Where parties have worked hard to develop mutual cooperation and respect, atoo rigorous use of must can introduce an unnecessarily adversarial attitude into the document …”. OPEN ACCESS
14 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 adhesion contract,11 where one party lacks the bargaining power. While the weaker party would be assigned obligation by means of you must, the stronger party would use the expression we will to set out its promises. The phrase we will is reminiscent of the historical meaning of will: intention, wish, desire. Yet some scholars are rather ambivalent about will in business contracts. Busk (2017, pp.50–51) presents the antithetical arguments of two well-known American legal experts (Ken Adams and Bryan Garner) on the use of shall or will in business contracts. For Adams, the sentence “Able will pay $500 to Baker on June 1, 2018” expresses future time, failing to create an obligation for Able to pay the money. By contrast, Garner argues that in “American English, will— not shall— is the ordinary verb of promise” (ibid., p.51). This uncertainty around the verbs will and shall has historical roots. According to Fischer and Van der Wurff (2006, p.131), “[f]uture time is of course the least certain, i.e. the least factual, of the three time zones, and it is therefore not surprising that amodal colouring … comes to the fore in the use of the ‘future tense’ auxiliaries will and shall, which originally expressed intention and obligation”. Adams clearly does not mind the archaic character of shall and understands shall as being rather close to becoming aterm of art and as such quite appropriate in legal language as long as “disciplined use” is maintained.12 He analyses in detail the use of must and will in contracts as potential substitutes of shall. In his view, must can be problematic in that it can express not only an obligation imposed on the subject of the sentence (“The Company must reimburse the Consultant …”), but also an obligation imposed on someone other than the subject (“The Closing must take place at Acme’s offices.”), as well as conditions (“To be reimbursed, Acme must submit …”) (Adams, 2017, p.60). Adams offers asimilar reasoning for will: it can express the future and also an obligation imposed on the subject of the sentence or on someone else. Consequently, must and will as alternatives to shall do not seem to resolve the problem of polysemy that was considered the greatest problem of shall. Nevertheless, certain influential drafters (Garner, 2001, p.941; Kimble, 1992, p.76) do recommend will as asubstitute for shall. The Drafting Techniques Group (DTG) was reluctant to recommend will as an alternative to shall because it is normally associated with futurity rather than imposition of obligations: “It is not clear whether the statement ‘the Secretary of State will do Xʼ imposes aduty on the Secretary of State.” (DTG, 2008, p.4). The “modal revolution” noted by Williams (2012) and the disagreement over substitution strategies for shall can generate additional work for courts. Busk (2017, p.51) mentions the case Lubbock County Water Control & Improvement District vAkin LLC, in which the phrase “will issue catering tickets” was construed by the Texas Supreme 11 “An adhesion contract exists if the parties are of such disproportionate bargaining power that the party of weaker bargaining strength could not have negotiated for variations in the terms of the adhesion contract …” (Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/adhesion_contract). 12 See also Drafting Techniques Group (2008, p.5): “Some writers favour the use of shall in legislation precisely because that is aspecialised legal use which signals the word is to be given aparticular interpretation”. OPEN ACCESS
EVA DVOřáKOVá 15 Court as imposing aduty: “[The phrase] establishes aduty, not astatement of intent. To read this as astatement of mere intent or plan makes the phrase at worst gratuitous and at best avery roundabout and awkward way of stating that Church & Akin is allowed to issue and redeem catering tickets.”.13 Nevertheless, rather than subjecting the meaning of will to arigorous semantic analysis, the court considered other, extra-linguistic factors— namely the fact that the phrase in question was located in asection where the parties stipulated their respective rights and obligations. It is quite imaginable that some scholars would argue that the interpretation of the relevant phrase would have been clearer had the modal verb shall been used. Garzone (2013a, p.107) observes that shall and must are not entirely identical. While shall “guarantees that the obligation is fulfilled”, this element is not present in must. She gives an example where the replacement of must with shall would be unacceptable: “Before making any grant under this section, the Secretary must consult with Indian tribes concerning the grant, but in this case he will not.” (ibid., p.107). It is the last part of the sentence (“in this case he will not”) which makes the substitution of must by shall impossible because shall implies that the fulfilment is guaranteed. The DTG (2008) took apragmatic approach to the substitutes of shall. Recognizing that asingle word as asubstitute is not available, the authors presented drafting solutions for various contexts (e.g., for imposing obligations, for creating astatutory body, for repeals, etc.). In its conclusions, the DTG provides aset of recommendations for each context. Thus, it recommends must for imposing obligations as “the clearest and most concise current alternative” (DTG, 2008, p.9). For the creation of astatutory body, the DTG recommends the phrase there is to be. The DTG also considered the use of the present tense, but the sentence “There is aDrafting Techniques Authority” apparently “does not make it clear that the Act itself is creating the body” (DTG, 2008, p.11) and it suggests that the authority is already in existence.14 The DTG further discusses the phrase “… is hereby established” but since the herewords are not recommended in legislation any more,15 there is reluctance to use hereby, which otherwise clearly indicates performativity. For application/effect (e.g., “shall apply to”), the DTG recommends the present tense. However, the paper suggests that in some cases there could be adifference in performativity. Thus, the sentence “X is entitled to compensation” could indicate that the source of the entitlement is elsewhere, not in the Act itself, whereas “‘X shall be entitled to compensationʼ shows that the Act itself creates the right” (DTG, 2008, p.16). But even the present tense of an operative legal document ensures performativity through the enacting formula— the “master speech act”16 (Garzone, 2013b, p.75). The present tense is further recommended for amendments (e.g., “is amended 13 Lubbock County Water Control & Improvement District vAkin LLC is available at: https://caselaw.findlaw.com/tx-supreme-court/1671842.html. 14 See also Garzone (2013b, p.77) who argues that “there is to be acorporate body” is not identical to “there shall be” because it lacks the guarantee of fulfilment. 15 See Office of the Parliamentary Counsel Drafting Guidance (2020, p.5). 16 However, Trosborg (1997, p.139) claims that the overuse of shall in statutes may be due to the “loss of trust in the continuing declarative force of the enacting clause”. OPEN ACCESS
22 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 4) Employer shall have the right to terminate this Agreement … (constitutive and prescriptive) 5) For purposes of this Agreement, the term “Competing Business” shall mean abusiness or adivision of abusiness, conducted anywhere in the world … (constitutive) The prescriptive element seems to be present even in the predominantly constitutive example (5) where it authoritatively determines the meaning of aparticular expression, requiring the addressees to respect that meaning. In this way, shall imposes an obligation on the readers to interpret the expression in acertain way. Likewise, example (2) constitutively determines the working hours of the employee, but at the same time requires the employee not to work less and obliges the employer not to exceed these working hours. In example (4) it is constitutively determined that the employer can terminate the agreement under certain circumstances, and everybody else is obliged to respect this right. The Australian contract corpus suggests that even private documents can be responsive to plain language efforts. Compared to the UK contracts, the ipm for shall is almost four times lower. This confirms Adams’ (2014, p.13) claim that “Australian practitioners have gone further than others in purging shall from their contracts”. The pioneering position of Australia with respect to plain language principles was noted by Williams (2011, p.140): “Beginning in the US in the 1970s, the [plain language] movement soon spread to Canada and the UK, but it was in Australia and New Zealand that the proposals for restyling legislative texts were first accepted by the Offices of Parliamentary Counsel as early as the late 1980s.”. In this way, the Australian drafters, lawyers, and addressees have had abundant time to become acquainted with the plain language principles and the lawyers have been able to incorporate them into the drafting of private documents. Besides, some very vociferous plain language exponents come from Australia, for example Peter Butt or Michele Asprey. According to Balmford (2002), the countries which have embraced the idea of plain language (such as the UK, US, South Africa), are generally responding to “regulatory demand”; for example, in the US the Plain Writing Act 2010 requires official communication to be written in plain language. By contrast, in Australia, many companies see plain language as their competitive edge and they are “committed to plain language in response to client demand” (ibid., section 5.4). Balmford (2002, section 5.3) even predicts that one day “clients everywhere will refuse to pay for legal services unless they are plain”. All these factors could account for the fact that the use of shall is significantly lower in Australian contracts than in British contracts. 3.2 SHALL IN UK LEGISLATION OVER 200 YEARS Figure 2 shows how shall was used over the past 200 years and how it was eventually replaced by other items. The 1820 corpus contains the highest frequency of shall, amounting to 18,000 instances per million words. In the subsequent corpora the use of shall declined. The greatest decline occurred between 1970 and 2020, and the 2020 corpus is virtually free of shall. These values indicate that the plain language efforts, OPEN ACCESS
EVA DVOřáKOVá 23 which started in the 1970s, are arguably behind the steep decline in shall. Asimilar trend was observed by Garzone (2013a, p.113), who suggested in 2013 that the reduction process “may eventually lead to shall-free legislation also in the UK”. Afew years later, we can confirm that Garzone’s predictions were fulfilled and current British legislation is indeed shall-free. As far as the substitutes for shall are concerned, Figure 2 shows that the suppression of shall was largely compensated by asubstantial increase in the use of the present tense, must, is to, and may not. The frequency of occurrence of all these substitutes has grown considerably in the last corpus, showing that it is not possible to substitute shall with asingle substitute, but avariety of options have been deployed. 3.3 SHALL IN EU LEGISLATION Figure 3 shows the values for shall in EU legislation in the 1975 corpus and the 2020 corpus. The data indicate that in the 1975 corpus the “words of authority” (Garner, 2001, p.939) are more prevalent than in the 2020 corpus. Such words of authority include shall, must, may not— their frequencies of occurrence are much higher in the 1975 corpus than in the 2020 corpus. Although the values for shall are still very significant in the 2020 corpus, the decline with respect to the 1975 corpus is noticeable— the difference is about 30%. Therefore, it seems that the language of EU legislation is slowly and cautiously following the plain language trend. In contrast to British legislation, however, the decline of shall was not compensated by the present tense (whose ipm is comparable in both corpora) or by another modal verb. It is surprising that the use of must is significantly more prevalent in the 1975 corpus than the 2020 corpus. We would have expected the opposite trend, with shall being partly replaced by must, as in British legislation. However, acheck of the concordance lines indicates that the use of must in these cases was largely confined to 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 10000 UK contracts 2020UK legislation 2020 EU legislation 2020 Aus contracts 2020 1820 1870 1920 1970 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 EU legislation 1975 EU legislation 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 1975 2020 must should 0 500 1000 1500 2000 2500 3000 3500 4000 4500 Figure 2:Adiachronic perspective: substitution strategies for shall in UK legislation (ipm). OPEN ACCESS
24 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 recitals (i.e., non-enacting terms), as evidenced by the word whereas in most cases. This seems to be in line with rule 10.29 of the English Style Guide (2020), which stipulates that shall should not be used in non-enacting terms such as recitals, and alternatives (must, have to, is required to) should be used instead. Likewise, the Joint Practical Guide (2015, p.12) maintains that specific verbs and tenses should be used in specific parts of legal acts: “The choice of verb and tense varies between different types of act and the different languages, and also between the recitals and the enacting terms.”. Recitals do not form part of the enacting terms of the legal act: The ‘recitals’ are the part of the act which contains the statement of reasons for its adoption; they are placed between the citations and the enacting terms. The statement of reasons begins with the word ‘whereas:’ and continues with numbered points … It uses non-mandatory language and must not be capable of being confused with the enacting terms. (Joint Practical Guide, 2015, p.31, emphasis added). “Non-mandatory language” here implies that the modal verb shall is not used in recitals. However, the high presence of must in recitals in the 1975 corpus suggests that at that time must was considered non-mandatory language (consistently with rule 10.29 of the English Style Guide), probably due to the unshakeable, monopoly position of shall (which was used in enacting terms and was clearly mandatory language). Since the 1970s we have witnessed significant repositioning of shall in legal language across the globe (due to plain language efforts), with must taking over some of the functions of shall; consequently, the non-mandatory status of must in recitals might have become rather questionable. After all, must is currently recommended by plain language exponents as an appropriate substitute for shall. Recitals in current EU legal acts contain mostly the modal verb should. Thus, in recitals, the modal verb must was, in the past, in competition with should (but nowadays must is in competition with shall in many common law countries). For example: Figure 3:Adiachronic perspective: substitution strategies for shall in EU legislation (ipm). 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 10000 UK contracts 2020UK legislation 2020 EU legislation 2020 Aus contracts 2020 1820 1870 1920 1970 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 EU legislation 1975 EU legislation 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 1975 2020 must should 0 500 1000 1500 2000 2500 3000 3500 4000 4500 OPEN ACCESS
EVA DVOřáKOVá 25 6) whereas the situation on this market must therefore be assessed in the light not only of the factors peculiar to the market itself but also of those relating to trends in the aforesaid trade (the 1975 corpus) In example (6) the modal verb must could be quite easily replaced with should. Although these two words are not considered synonymous in most contexts, in recitals they could be, as there is no doubt that this part of alegal act does not impose any obligations, but only justifies the measures to be taken. The data from our corpora seem to support this (see Figure 4): Figure 4:Adiachronic perspective: must and should (ipm). While the presence of must is very visible in the 1975 corpus compared to the 2020 corpus, the presence of should is much higher in the 2020 corpus than in the 1975 corpus. In other words, the decline in must in 2020 might have been compensated by an increase in should. Overall, this discussion shows that the repositioning of shall and its partial suppression can have an impact on other modal verbs (in this case must and should), which can lose some of their previous functions and acquire new ones. This seems to fully justify the term “modal revolution” coined by Williams (2012). 3.4 SHALL IN UK CONTRACTS Figure 5 shows the use of shall and its possible substitutes in British contracts from the years 1998 and 2018. The substitutes were selected based on Adams (2017). Although Adams’ work is of American origin and our contracts are British, Adams’ book has become iconic worldwide and widely read in the UK. Thus, the substitutes proposed by Adams are relevant to British contracts as well. Even such ashort time span indicates that the plain language trend has found its way into British contracts. From 1998 to 2018 the use of shall declined by nearly 40%. As regards the substitutes, there is anoticeable increase in must, the present tense, will, and agree to. The remaining items occurred in rather small frequencies 0 1000 2000 3000 4000 5000 6000 7000 8000 9000 10000 UK contracts 2020UK legislation 2020 EU legislation 2020 Aus contracts 2020 1820 1870 1920 1970 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 EU legislation 1975 EU legislation 2020 shall must is to / are to / is not to / are not to may not present tense 0 5000 10000 15000 20000 25000 30000 1975 2020 must should 0 500 1000 1500 2000 2500 3000 3500 4000 4500 OPEN ACCESS
26 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 and therefore cannot be considered viable candidates for the replacement of shall. The use of the expression is to (with the relevant permutations) has declined in contracts (by 36%), showing that this option is not popular among contract drafters. This is in stark contrast to British legislative drafting practices, where is to has been given adistinct role26 and is on the increase. The use of the present tense has not become adominant option, in contrast to British legislation, where it clearly prevailed over any other substitution strategy. The increase in the use of will and must in the 2018 corpus tentatively suggests that contract drafters might have taken on board Garner’s (2001, p.941) advice to use the phrases we will and you must for parties of unequal bargaining power. Employment contracts are presumably such contracts, because the employer generally has astronger position than the other party (the employee). Table 2 shows the uses of the phrases we will and you must in our corpora. we will you must 1998 corpus 6 0 2018 corpus 193 201 Table 2:Use of we will and you must. 26 See DTG (2008, p.12), who recommend is to for the creation of new statutory bodies, offices, courts, and tribunals. Figure 5:Adiachronic perspective: substitution strategies for shall in UK contracts (ipm). shall 8598 shall 13902 will 4772 will 2483 must 475 must 130 is to 94 is to 148 present tense 15684 present tense 14056 agree to 537 agree to 426 1998 corpus 2018 corpus 0 5000 10000 15000 20000 25000 30000 35000 OPEN ACCESS
EVA DVOřáKOVá 27 While the 1998 corpus contains very few or no examples of these phrases, the 2018 corpus shows they have become much more popular. The dispersion was not high in the corpora (about 5 documents out of 30), but it could nevertheless suggest atrend for the future. Overall, Figure 5 confirms that the drafters of contracts are probably becoming sensitive to the controversies surrounding the overuse of shall and are willing to adjust their drafting practices by reducing the use of shall and by considering other alternatives. Although shall still seems popular among lawyers, a40% decline over 20 years is significant. 4 CONCLUSION This paper sought to examine the current debate surrounding the use of shall in legal texts and to analyse the use of shall and potential substitution strategies in British legislation, EU legislation, and contracts. It appears that the recent general tendency has been to suppress shall in legal texts, backed up by the argument that shall is archaic and ambiguous. Yet, there have been some voices from the research community arguing that the substitution strategies may not always bring areal improvement. Certain researchers have made acase for adisciplined use of shall in private documents, using the “has aduty” test. Our corpus data suggest that the situation is very varied across genres and jurisdictions. While shall has been completely removed from British legislation by now and arobust system of substitution strategies has been put in place, in EU legislation shall still thrives, although we have observed anoticeable decline. British contract drafters still adhere to shall, albeit to alesser extent than 20 years ago. Contract drafters from Australia, where plain language is largely seen as acompetitive edge for law firms, use shall much less than their British counterparts. With regard to substitution strategies, the situation appears to be very dynamic. While certain substitutes have been recommended for particular uses in British legislation (e.g., is to for establishing astatutory body or office, must for imposing an obligation, etc.), the situation is much less uniform in British contracts, where standardisation is more difficult to achieve. Thus, it seems that the British contract drafters are following suit as regards the growing aversion to shall, but at the same time they are still exploring the available substitutes. In addition, our analysis of the use of must in EU legislation has shown that the decision to replace shall may have far-reaching consequences for the whole system of modal verbs (almost reminiscent of the butterfly effect in meteorology); while must was used in recitals in the 1970s as non-mandatory language, its repositioning as asubstitute for shall (and thus recategorization as mandatory language) probably strengthened the position of should in recitals. To conclude, the situation around shall is very dynamic at the moment, and although the fate of shall is still uncertain, some strong voices from the research community have raised valid arguments in its defence. It seems that we are in the middle of a“modal revolution” (Williams, 2012), and although shall has lost some battles (e.g., the suppression of shall in British legislation), it seems that a“disciplined use” of shall OPEN ACCESS
28 STUDIE ZAPLIKOVANÉ LINGVISTIKY 1/2023 advanced by Adams (2014, p.13) could be the desired outcome for private documents, reconciling the legal practitioners’ predilection for shall with the need to avoid its overuse. REFERENCES Adams, K. A. (2014). Banishing shall from business contracts: Throwing the baby out with the bathwater. Australian Corporate Lawyer, 12–13. Adams, K. A. (2017). AManual of Style for Contract Drafting. American Bar Association. Asprey, M. M. (1992). Shall must go. The Scribes Journal of Legal Writing, 3, 79–83. Austin, J.L. (1976). How to Do Things with Words: The William James Lectures Delivered at Harvard University in 1955. Oxford University Press. Balmford, C. (2002). Plain language: beyond amovement: Repositioning clear communication in the minds of decisionmakers. Plainlanguage.gov website. Available at https://www.plainlanguage.gov/resources/ articles/beyond-a-movement/. Busk, C.C. (2017). Using shall or will to create obligations in business contracts. Michigan Bar Journal, 50–52. Butt, P. (2014). Modern Legal Drafting: AGuide to Using Clearer Language. Cambridge University Press. Butt, P. (2018). Legal Usage. AModern Style Guide. LexisNexis Butterworths. Chesler, S.M. (2009). Drafting effective contracts: How to revise, edit, and use form agreements. Business Law Today, 19(2), 34–37. Child, B. (1990). Language preferences of judges and lawyers. AFlorida Survey, 64 Fla. B.J. 32. Dobrić Basaneže, K. (2018). Extended binomial expressions in the language of contracts. Phraseology in Legal and Institutional Settings, 1, 203–220. Drafting Techniques Group (2008). Shall. Paper 19 (final). English Style Guide. AHandbook for Authors and Translators in the European Commission (2020). European Commission. Fillmore, C.J. (1971). Santa Cruz Lectures on Deixis. University of California, Berkeley. Fischer, O., & Van der Wurff, W. (2006). Syntax. In R.Hogg & D.Denison (Eds.), AHistory of the English Language (pp. 109–198). Cambridge University Press. Garner, B.A. (2001). ADictionary of Modern Legal Usage. 2nd ed. Oxford University Press. Garzone, G. (2013a). Modality and performativity in legislative texts: The case of shall. In F.Poppi & W.Cheng. (Eds.), The Three Waves of Globalization: Winds of Change in Professional, Institutional and Academic Genres (pp. 94–122). Cambridge Scholars Publishing. Garzone, G. (2013b). Variation in the use of modality in legislative texts: Focus on shall. Journal of Pragmatics, 57, 68–81. Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation (2015). Publications Office of the European Union. Kimble, J. (1992). The many misuses of shall. The Scribes Journal of Legal Writing, 3, 61–77. Kurzon, D. (1986). It Is Hereby Performed… Explorations in Legal Speech Acts. John Benjamins Publishing Company. Mellinkoff, D. (1963). The Language of the Law. Wipf and Stock Publishers. Office of the Parliamentary Counsel Drafting Guidance (June 2020). Available at https:// assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/ file/892409/OPC_drafting_guidance_ June_2020-1.pdf. Searle, J.R. (1969). Speech Acts: An Essay in the Philosophy of Language. Cambridge University Press. Stefanou, C. (2016). Comparative legislative drafting: Comparing across legal systems. European Journal of Law Reform, 18(2), 123–138. OPEN ACCESS
EVA DVOřáKOVá 29 Trosborg, A. (1997). Rhetorical Strategies in Legal Language: Discourse Analysis of Statutes and Contracts. Narr. Williams, C. (2006). Fuzziness in legal English: What shall we do with shall? In A.Wagner & S.Cacciaguidi-Fahy (Eds.), Legal Language and the Search for Clarity (pp. 237–264). Peter Lang. Williams, C. (2011). Legal English and plain language: An update. ESP Across Cultures, 8, 139–151. Williams, C. (2012). Changes in the verb phrase in legislative language in English. In B.Aarts (Ed.), The Verb Phrase in English: Investigating Recent Language Change with Corpora (pp. 353–371). Cambridge University Press. Williams, C. (2015). Changing with the times: The evolution of plain language in the legal sphere. Revista Alicantina de Estudios Ingleses, 28, 183–203. Xanthaki, H. (2013). Thornton’s Legislative Drafting. Bloomsbury. Eva Dvořáková | Katedra jazyků, Právnická fakulta, Univerzita Karlova <[email protected]> OPEN ACCESS