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.
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.
“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
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:
These definitions are incorporated by reference in many Internet standards and specifications, including those not even written by the IETF.
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.
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™
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.
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.
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.
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.
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.
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.
“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.
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.
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.