# Legal meaning of "should" vs "shall" **URL:** \ **Category:** Factual Questions\ **Created:** [August 25, 2010, 1:55pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394 "2010-08-25T13:55:49Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [August 27, 2010, 1:20am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/21 "2010-08-27T01:20:59Z")
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. ---
**Author:** ![pericynthion](https://avatars.discourse-cdn.com/v4/letter/p/85e7bf/32.png) [@pericynthion](https://boards.straightdope.com/u/pericynthion)\ **Post date:** [August 27, 2010, 3:03am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/22 "2010-08-27T03:03:15Z")
What kind of terrain would make it impractical to turn _above_ 500 ft? ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [August 27, 2010, 3:24am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/23 "2010-08-27T03:24:42Z")
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. ---
**Author:** ![Richard\_Pearse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/richard_pearse/32/13144_2.png) [@Richard\_Pearse](https://boards.straightdope.com/u/Richard_Pearse)\ **Post date:** [August 27, 2010, 4:58am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/24 "2010-08-27T04:58:03Z")
> [@pericynthion](#): > > 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. ---
**Author:** ![uber069](https://avatars.discourse-cdn.com/v4/letter/u/87869e/32.png) [@uber069](https://boards.straightdope.com/u/uber069)\ **Post date:** [October 9, 2011, 6:21am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/25 "2011-10-09T06:21:09Z")
> [@Richard\_Pearse](#): > > 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 :dubious: ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [October 9, 2011, 8:38am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/26 "2011-10-09T08:38:44Z")
> [@LouisB](#): > > Illegal is a sick bird. > [@pericynthion](#): > > 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. ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [October 9, 2011, 10:54am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/27 "2011-10-09T10:54:37Z")
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)](http://en.wikipedia.org/wiki/Internet_Engineering_Task_Force), the body which maintains many of the basic Internet standards, has adopted a “current best practices” memorandum, [RFC 2119](http://www.ietf.org/rfc/rfc2119.txt), 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: > [@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. ---
**Author:** ![CookingWithGas](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cookingwithgas/32/485_2.png) [@CookingWithGas](https://boards.straightdope.com/u/CookingWithGas)\ **Post date:** [October 9, 2011, 1:30pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/28 "2011-10-09T13:30:44Z")
> [@uber069](#): > > forgive if I am repeating someone here already, I have not yet read all replies Slow reader? You’ve had 13 months. :rolleyes: ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 9, 2011, 2:11pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/29 "2011-10-09T14:11:28Z")
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. ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [October 9, 2011, 3:14pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/30 "2011-10-09T15:14:37Z")
> [@AK84](#): > > 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. ---
**Author:** ![WingstheONE](https://avatars.discourse-cdn.com/v4/letter/w/7bcc69/32.png) [@WingstheONE](https://boards.straightdope.com/u/WingstheONE)\ **Post date:** [December 20, 2011, 3:55pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/31 "2011-12-20T15:55:11Z")
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™ ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 20, 2011, 4:01pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/32 "2011-12-20T16:01:39Z")
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. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [December 20, 2011, 4:06pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/33 "2011-12-20T16:06:01Z")
> [@Richard\_Pearse](#): > > 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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [December 20, 2011, 4:09pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/34 "2011-12-20T16:09:52Z")
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. > [@UDS](#): > > …(“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”? ---
**Author:** ![Johanna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johanna/32/8318_2.png) [@Johanna](https://boards.straightdope.com/u/Johanna)\ **Post date:** [December 20, 2011, 9:17pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/35 "2011-12-20T21:17:54Z")
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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 20, 2011, 10:10pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/36 "2011-12-20T22:10:18Z")
_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. ---
**Author:** ![Johanna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johanna/32/8318_2.png) [@Johanna](https://boards.straightdope.com/u/Johanna)\ **Post date:** [December 20, 2011, 10:26pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/37 "2011-12-20T22:26:35Z")
> [@Polycarp](#): > > 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. ---
**Author:** ![Dread\_Pirate\_Jimbo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dread_pirate_jimbo/32/3897_2.png) [@Dread\_Pirate\_Jimbo](https://boards.straightdope.com/u/Dread_Pirate_Jimbo)\ **Post date:** [December 20, 2011, 10:48pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/38 "2011-12-20T22:48:04Z")
“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. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [December 20, 2011, 11:06pm UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/39 "2011-12-20T23:06:11Z")
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. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [December 21, 2011, 2:33am UTC](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394/40 "2011-12-21T02:33:41Z")
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. [Previous page](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394.md?page=1) [Next page](https://boards.straightdope.com/t/legal-meaning-of-should-vs-shall/551394.md?page=3)