We Will Overcome: Eliminating the Word 'Shall' From Legal Drafting

August 01, 2012 7:08 PM

In the August 2012 ABA Journal (via the Legal Writing Prof Blog), Bryan Garner argues that the time has come to say farewell to the word "shall" in legal drafting, and replace it with a "clearer word more characteristic of American English: must, will, is, may or the phrase is entitled to."

Garner, who is among other things the editor in chief of Black's Law Dictionary, argues that "shall" has several inherent weaknesses that undercut its usefulness. First, he says, the word is no longer even in use in the American vocabulary, with two very limited exceptions: the expressions "We shall overcome" and "Shall we ... ?" As lawyers know well, however, "shall" is still very commonly used in contracts, statutes, and other rules and regulations to convey that something is mandatory.

The main problem with lawyers' use of "shall" comes when the word is used as a prohibition, such as "no person shall ... ." As Garner explains,

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.

Garner says this routine (mis)use of "shall" to prohibit something has forced courts to often interpret "shall" to mean "may," making it an unintentionally "chameleon-hued word."

Garner says that current practice in drafting Federal Rules is to eliminate "shall" altogether in favor of the word "must," and that "shall" has now almost completely purged from all four major sets of Federal Rules. In typical bilateral agreements, he says, the word "will" is preferable. ("The parties agree as follows ... Jones will do this. Smith will do that.").