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  #1  
Old 08-25-2010, 08:55 AM
Richard Pearse Richard Pearse is offline
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Legal meaning of "should" vs "shall"

What is the typical legal definition of "should"? Is it a synonym for "shall" or does it have some leeway?

I'm reading a legal document and although many such documents have a preamble explaining the intended meaning of words like "shall", "should", and "will", this one doesn't.
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  #2  
Old 08-25-2010, 09:03 AM
Giles Giles is offline
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In a legal document, "shall" generally means "is required by this rule (i.e., statute, regulation, by-law, etc.) to". I've not seen "should" or "will" used in a legal document, and (unless they were defined within the document) I think they could be confusing: Does "should" mean some ethical requirement that is not legally binding? Is "will" just a prediction about the future?
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Old 08-25-2010, 09:17 AM
Richard Pearse Richard Pearse is offline
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It's not really a legal document but rather a guidance document expanding on the requirements of the regulations. I'm trying to get hold of the document itself, I was taking someone's word that the preamble wasn't there.

Edit: It's ok, I've found the preamble, "should" means a person is "encouraged" to do something while "must" and "shall" mean they are required to do it.

Last edited by Richard Pearse; 08-25-2010 at 09:19 AM..
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  #4  
Old 08-25-2010, 09:17 AM
Acsenray Acsenray is offline
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I'm with Giles. "Shall" means mandatory. "Should" has no special legal meaning.
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Old 08-25-2010, 09:30 AM
dzero dzero is offline
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"should" is not defined in any of the online legal dictionaries I searched.

Normally the words used are "shall" to indicate a compulsory requirement and "may" for one which is permissive.

Here is the definition of "shall" from a legal dictionary - http://legal-dictionary.thefreedictionary.com/should
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  #6  
Old 08-25-2010, 09:51 AM
Richard Pearse Richard Pearse is offline
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Yeah it's specific to this document.
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Old 08-25-2010, 10:26 AM
mazinger_z mazinger_z is offline
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"Should" should not be anywhere in any type of legal writing -- well, perhaps in a memo, sadly it's probably seen a lot in actual legislation. It should not be in any legal agreement or contract. Should is a conditional phrase (I forgot the technical term for it), which, in of itself, is not necessarily bad drafting. However, it is often used to describe a condition with many other possible outcomes which the document often fails to capture or account for.

I also feel strongly about the unfortunate use of "may" and "will" (more so for the incorrect usage).
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Old 08-25-2010, 10:54 AM
sinical brit sinical brit is offline
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On a similar note ( which probably doesnt warrant its own thread ) in fuel stations in the UK there is always a not saying it is 'unlawful' to use the pump under the age 16 - amongst other things.

Whats the difference between unlawful and illegal ?
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Old 08-25-2010, 10:55 AM
Acsenray Acsenray is offline
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No difference.
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Old 08-25-2010, 11:01 AM
qpw3141 qpw3141 is offline
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Originally Posted by acsenray View Post
No difference.
Not according to a certain Website.
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Old 08-25-2010, 11:10 AM
Giles Giles is offline
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Originally Posted by qpw3141 View Post
Quote:
Originally Posted by acsenray View Post
No difference.
Not according to a certain Website.
While the distinction made in that article might be a useful one, I don't think that it's made by everyone in practice. My copy of Black's Law Dictionary has:
Quote:
illegal, adj. Forbidden by law; unlawful. ...

unlawful, adj. 1. Not authorized by law; illegal. ... 2. Criminally punishable. ... 3. Involving moral turpitude.
Only the second definition of "unlawful" mentions the criminal element.
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Old 08-25-2010, 11:13 AM
qpw3141 qpw3141 is offline
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Originally Posted by Giles View Post
Quote:
Originally Posted by qpw3141 View Post

Not according to a certain Website.
While the distinction made in that article might be a useful one, I don't think that it's made by everyone in practice. My copy of Black's Law Dictionary has:
Quote:
illegal, adj. Forbidden by law; unlawful. ...

unlawful, adj. 1. Not authorized by law; illegal. ... 2. Criminally punishable. ... 3. Involving moral turpitude.
Only the second definition of "unlawful" mentions the criminal element.
I'm not even sure it's ever useful given the number of people who have zilch idea of the difference between civil and criminal law.

I was just checking to see if there was some obsolete or arcane difference and thought the source of the linked article amusing.
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  #13  
Old 08-25-2010, 11:31 AM
LouisB LouisB is offline
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Originally Posted by sinical brit View Post
On a similar note ( which probably doesnt warrant its own thread ) in fuel stations in the UK there is always a not saying it is 'unlawful' to use the pump under the age 16 - amongst other things.

Whats the difference between unlawful and illegal ?
Illegal is a sick bird.
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  #14  
Old 08-25-2010, 12:24 PM
Richard Pearse Richard Pearse is offline
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I'll explain more about the document. It's not a regulation as such. The rules of the air in Australia are set out in a number of regulations. These regulations often have get out clauses such as "unless authorized by the Authority...". One of the means for the Authority to authorize various things and to expand on the regs is the AIP which is a manual for pilots that provides a mixture of mandatory practices based on the rules, recommended practices, and general information of use to pilots. It is this AIP that has the fuzzy language such as "should". Although it is tied in to the rules it is probably not the type of legal document you guys are thinking of.

Thanks for the responses!
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Old 08-25-2010, 12:35 PM
qpw3141 qpw3141 is offline
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Originally Posted by Richard Pearse View Post
I'll explain more about the document. It's not a regulation as such. The rules of the air in Australia are set out in a number of regulations. These regulations often have get out clauses such as "unless authorized by the Authority...". One of the means for the Authority to authorize various things and to expand on the regs is the AIP which is a manual for pilots that provides a mixture of mandatory practices based on the rules, recommended practices, and general information of use to pilots. It is this AIP that has the fuzzy language such as "should". Although it is tied in to the rules it is probably not the type of legal document you guys are thinking of.
I suspect that's common with aviation legislation.

Because virtually any rule can be broken if necessary to ensure the safety of the flight they probably steer clear of 'shall' for situations where the rule can legally be broken for safety reasons.

It's a long time since I did my Air Law exam but I'll try and dig out some of the texts.
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  #16  
Old 08-25-2010, 12:47 PM
Jimmy Chitwood Jimmy Chitwood is online now
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The only legal sense in which I can recall hearing "should" used is as part of the general aspirational guidelines for professional conduct. In Pennsylvania, for instance,
Quote:
In all professional functions a lawyer should be competent, prompt and diligent. A lawyer
should maintain communication with a client concerning the representation. A lawyer should keep in
confidence information relating to representation of a client except so far as disclosure is required or
permitted by the Rules of Professional Conduct or other law.
That's from the preamble of the Rules. You'd never actually be in violation of those guidelines specifically, but of the actual rule that governs whatever conduct you were engaged in (and which would say "shall" or "shall not... unless" or something). This seems roughly analogous to the manual you're looking at, so it's possible that they're using it in the same aspirational sense.

Last edited by Jimmy Chitwood; 08-25-2010 at 12:47 PM..
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  #17  
Old 08-25-2010, 01:00 PM
Richard Pearse Richard Pearse is offline
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Quote:
Originally Posted by qpw3141 View Post
Quote:
Originally Posted by Richard Pearse View Post
I'll explain more about the document. It's not a regulation as such. The rules of the air in Australia are set out in a number of regulations. These regulations often have get out clauses such as "unless authorized by the Authority...". One of the means for the Authority to authorize various things and to expand on the regs is the AIP which is a manual for pilots that provides a mixture of mandatory practices based on the rules, recommended practices, and general information of use to pilots. It is this AIP that has the fuzzy language such as "should". Although it is tied in to the rules it is probably not the type of legal document you guys are thinking of.
I suspect that's common with aviation legislation.

Because virtually any rule can be broken if necessary to ensure the safety of the flight they probably steer clear of 'shall' for situations where the rule can legally be broken for safety reasons.

It's a long time since I did my Air Law exam but I'll try and dig out some of the texts.
That's a good point. Generally mandating an action is ok because, as you point out, any rule can be broken for the purposes of avoiding a fiery death, but I think "should" is used when you may use your judgement to do something if, in your opinion, it is just safer.

The example that started this is that the AIP says that aircraft should complete their turn on to final no lower than 500'. Because they use "should" I can come up with several everyday reasons why you might not follow that guideline (not practical given the terrain for one.) If instead they'd used "shall" then the only time you could break the rule would be to avoid turning into a fiery wreck. So if the terrain made it impractical or impossible to complete the turn at or above 500' you simply wouldn't be able to operate into the airfield.
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Old 08-25-2010, 02:24 PM
Markxxx Markxxx is offline
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Do they use the word "Ought" ever?
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  #19  
Old 08-26-2010, 09:59 AM
sinical brit sinical brit is offline
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Originally Posted by qpw3141 View Post
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No difference.
Not according to a certain Website.

Thanks ! Never though about looking here !

Sorry for the hj.
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  #20  
Old 08-26-2010, 11:04 AM
Richard Pearse Richard Pearse is offline
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Do they use the word "Ought" ever?
Australians don't say "ought" .
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  #21  
Old 08-26-2010, 08:20 PM
UDS UDS is online now
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Parliamentary counsel here. I draft legislation for a living. "May" for permissive provisions; "must" or "is to" for obligatory provisions; "shall", never.

In the past "shall" was regularly used for obligatory provisions, so we often find it in legislation for which we are drafting amendments. Where the opportunity arises, we replace it.

The usage, meaning and connotations of "shall" differs in different versions of English, and has also shifted over time. This makes it not ideally suitable for legislative use.

"Should" is rarely used in the principal clause of a legislative provision, though it often occurs in subordinate clauses. ("The Authority may designate places of historic or scientific interest which, it's view, should be preserved as heritage sites" or "The court, in considering the application, is to have regard to the principle that a final order should be determined expeditiously".) In most cases, the use of "should" is going to point to some principle or consideration which the legislation is directing someone to take into account in their actions or decisions, rather than a principle which the legislation is trying directly to enforce.
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  #22  
Old 08-26-2010, 10:03 PM
pericynthion pericynthion is offline
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What kind of terrain would make it impractical to turn above 500 ft?
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  #23  
Old 08-26-2010, 10:24 PM
CookingWithGas CookingWithGas is offline
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IANAL but I took an in-house course in contracts when I was a project manager at a big consulting firm. "Shall" means that the party is obligated by the contract to perform the action. "Will" is used to describe something that is expected to occur but is not required to occur by the contract; it may refer to a party who is not a party to the contract at all.

Their use in legislation may be different.
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  #24  
Old 08-26-2010, 11:58 PM
Richard Pearse Richard Pearse is offline
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What kind of terrain would make it impractical to turn above 500 ft?
A hill off the end of a runway may require you to position inside it on a closer and therefore lower base and final.
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  #25  
Old 10-09-2011, 01:21 AM
uber069 uber069 is offline
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Originally Posted by Richard Pearse View Post
It's not really a legal document but rather a guidance document expanding on the requirements of the regulations. I'm trying to get hold of the document itself, I was taking someone's word that the preamble wasn't there.

Edit: It's ok, I've found the preamble, "should" means a person is "encouraged" to do something while "must" and "shall" mean they are required to do it.
"should" is an intonation that the intended is doing something wrong, it is a retort or reproof. This is contrary to law as an imperfect being cannot judge another imperfect being as imperfect. God alone can judge his creation. Legally it may be used as a conjoinder to further a sentence vocabularily. Any attorney worth his or her salt will not use "should" as a pretext or the primary basis of any point of their procedure.

"shall" is another fun word which intones violence or at least imposition upon the subject were they to refuse the contract; a threat of force. Lawfully, nothing can be imposed except the subject has caused harm, loss or injury with lawful evidence to support and in the past, lawful punishments were based upon not precedent but the will of the peers, as it should be, with standardized punishments and regard. The legal process however approaches precedent as almost a religion regarding punishment for crime.

"must" on the other hand, is synonymous with "may", as in, "you may choose to contract with >us< (commercial).

Law is fair and reveres and protects life

Legal is unfair and defers to procedure and obfuscation

forgive if I am repeating someone here already, I have not yet read all replies

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  #26  
Old 10-09-2011, 03:38 AM
Muffin Muffin is offline
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Illegal is a sick bird.
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Originally Posted by pericynthion View Post
What kind of terrain would make it impractical to turn above 500 ft?
If you are an illegal, I doubt if you could make it up that high.
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  #27  
Old 10-09-2011, 05:54 AM
psychonaut psychonaut is offline
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As in law, the distinction between these terms (and other auxiliary verbs) is particularly important in technical documents, such as computing standards. You may be interested to know that the Internet Engineering Task Force (IETF), the body which maintains many of the basic Internet standards, has adopted a "current best practices" memorandum, RFC 2119, on the use of "must", "must not", "required", "shall", "shall not", "should", "should not", "recommended", "may", and "optional". Here's the relevant part of the memorandum:
Quote:
Originally Posted by RFC 2119
1 MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification.

2 MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification.

3 SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course.

4 SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label.

5 MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.)
These definitions are incorporated by reference in many Internet standards and specifications, including those not even written by the IETF.
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  #28  
Old 10-09-2011, 08:30 AM
CookingWithGas CookingWithGas is offline
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forgive if I am repeating someone here already, I have not yet read all replies
Slow reader? You've had 13 months.
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  #29  
Old 10-09-2011, 09:11 AM
AK84 AK84 is offline
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Looks like this is not primary legislation or even rules or regulation, but rather codes of good practice. The latter are much more flexible then substantive law or rules.
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Old 10-09-2011, 10:14 AM
psychonaut psychonaut is offline
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Looks like this is not primary legislation or even rules or regulation, but rather codes of good practice.
If you're referring to my post, I said as much in its second sentence.
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  #31  
Old 12-20-2011, 09:55 AM
WingstheONE WingstheONE is offline
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Greetings,
I like to be called Wings™.
I have been summoned to a magistrates court. In the response from the clerk to the justices to my rebuttal to the invitation with included Notices to the Judge in his chambers without his robe on etc, and to all the Principles, stating Remedy of "I waived my benefit privilege of attending. The clerk simply wrote back that all notices were shown to the Judge and "I Should Attend" on the said date. I have attempted to understand the above thread, but, am somewhat confused still. Would you a learned living, natural man or woman please expand on this word in the court context please. My understanding is that I don't have to go to court on appointed day, and that as no threats of bench warrants etc were offered in his Notice to me, I feel reasonable ok, not comfortable though, as I do not trust courts? Input please?
Thanks and take it easy,
Wings™
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  #32  
Old 12-20-2011, 10:01 AM
Acsenray Acsenray is offline
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Your story is difficult to understand, not least because there are not enough details. But I gather it boils down to the fact that a court has told you that you "should attend" and you want to know if you have to.

This sounds like a request for legal advice to me. I am a lawyer but not your lawyer, and I am not competent to practice in your jurisdiction. Indeed, given some of the terms you use, I'm likely unfamiliar with the specific laws of your country. Given that, I feel comfortable in saying only this:

(1) When a court tells you to do something, it is wise to do it, or to have a very good reason for not doing it, backed by the advice of competent counsel.
(2) You need a lawyer competent in your jurisdiction to advise you, especially if you're considering not complying with the request of a court.
(3) Whatever the outcome, your personal matter is most likely not dependent on the theoretical or conceptual legal meaning of the word "should." In real life law, a court is not going to be amused by someone trying to parse semantics in this way.

Last edited by Acsenray; 12-20-2011 at 10:04 AM..
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  #33  
Old 12-20-2011, 10:06 AM
robert_columbia robert_columbia is offline
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Originally Posted by Richard Pearse View Post
What is the typical legal definition of "should"? Is it a synonym for "shall" or does it have some leeway?

I'm reading a legal document and although many such documents have a preamble explaining the intended meaning of words like "shall", "should", and "will", this one doesn't.
In the world of Software Requirements, they are very specific terms of art:

Should : This is a suggestion to you, the developer, as to how to proceed. If you have good enough reason, you may exercise professional discretion and disregard it.

Shall : You have to do this.

Will : This is an assertion of fact. So, for example, if the Requirements say "The power supply will provide at least 500 W DC at 12 V, then we are telling you that it will work out in the end so that this happens. You are not responsible for it.
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  #34  
Old 12-20-2011, 10:09 AM
Elendil's Heir Elendil's Heir is online now
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Ohio magistrate here. I see "must" used not all that often, but "shall" much more often; they're synonymous for "You gotta do it." "May" means in the discretion of the affected individual. I agree with Jimmy Chitwood as to "should" being used quite a bit in ethical guidance for lawyers. I also very strongly agree with, and second, Acsenray's advice.

Quote:
Originally Posted by UDS View Post
...("The Authority may designate places of historic or scientific interest which, it's view, should be preserved as heritage sites"....)
Did you mean, "in its view"?

Last edited by Elendil's Heir; 12-20-2011 at 10:11 AM..
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  #35  
Old 12-20-2011, 03:17 PM
Johanna Johanna is offline
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Originally should is the conditional mood of shall. Just as would is the conditional mood of will.

The verbal auxiliary will literally meant that the subject of the verb is exercising their own will. Using shall as the auxiliary meant that the subject is not being given a choice in the matter. The legal usage of shall in mandatory provisions follows the latter meaning.

Should, it seems to me, is the weakest and most weaselly word in the English language. Should, as it's used in the present day, has nearly no meaning. Sentences made with should are insubstantial, squishy, and vague. So when I want to express with a modal verb construction that a given outcome is desirable, I use ought, which still retains some strength and clarity.
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  #36  
Old 12-20-2011, 04:10 PM
Polycarp Polycarp is offline
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Should also has a special use in legal planning documents, where it defines the intended goals and criteria for reaching them. "Residential ;B; zones should comprise predominantly single-family residences situated on lots of at lest one half acre with at least 100 feet of road frontage." Or "Loans from the fund should preferentially be made to businesses which will use the money to create new full time jobs."

These set up broad standards to be applied judiciously in specific circumstances. So the developer who seeks to subdivide a 24 acre flat field into 50 parcels of 0.48 acres each while giving the 10 adjacent acres with rock outcrops and a stream as a municipal park -- the town council can accept his plan as complying with the intent of the municipal plan. Or one of the loans goes to enable a brand new medical practice, creating no new jobs but providing the town a needed public service.

Because the plans are written with "should", they provide clear guidance as to intents and standards, not absolute requirements.
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  #37  
Old 12-20-2011, 04:26 PM
Johanna Johanna is offline
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Originally Posted by Polycarp View Post
Because the plans are written with "should", they provide clear guidance as to intents and standards, not absolute requirements.
That illustrates how should originally meant the conditional mood of shall. It meant: on the condition that this provision has been tested and found better than the alternatives, then the force of the shall kicks in. When the condition is met it goes into effect.

ETA—I'm not someone who could say anything about administration of a code of standards, or judging the laws. I'm just analyzing the grammar they use.

Last edited by Johanna; 12-20-2011 at 04:29 PM..
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  #38  
Old 12-20-2011, 04:48 PM
Dread Pirate Jimbo Dread Pirate Jimbo is offline
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"Should" and "shall" show up a lot in Alberta's Occupational Health and Safety legislation. "Should" means a recommended suggestion and "shall" is an obligation within that document. At the end of the day, though, if you're trying to mount a due diligence case in defense of some OHS-related incident, if you haven't done any of the "should" items, you'll probably not meet the standard for doing everything "reasonable and practicable" to protect your workers.
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  #39  
Old 12-20-2011, 05:06 PM
Giles Giles is offline
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My lay guess about what the clerk of the court meant when he/she said that WingstheONE "should" attend is that:
(1) there is no direct penalty for failing to attend, but
(2) it would be in WingstheONE's best interests to attend, so that he can tell his/her side of the story -- i.e., if WingstheONE does not attend, the court may make adverse decisions since it only heard one side of the case.

But I'm not a lawyer.
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  #40  
Old 12-20-2011, 08:33 PM
Acsenray Acsenray is offline
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Courts aren't generally in the business of telling you what's in your best interest just for the sake of your own benefit. Usually, when they muster up the energy to issue instructions, it's because they want something done.
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  #41  
Old 12-21-2011, 02:56 PM
spikebrennan spikebrennan is offline
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I'm a lawyer in the United States.

In a well-drafted legal document, "shall" means "has a duty to", and "should" generally means something like "ought to (but there's no particular penalty for failing to)".

Not that all documents that use those words do so correctly.
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