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How to Use “Shall” in Legal Writing Essay Sample

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How to Use “Shall” in Legal Writing Essay Sample

“Shall” is frequently used in statutes, laws and regulations. Whenever we try to explain a particular law or provide advice in relation a particular law, it is inevitable that we simply replicate the word “shall” as it is used in the statutes, laws and regulations. Nevertheless, the use of the word “shall” does not convey the right meaning in the context of what we are writing. Oftentimes, “shall” functions as a “directive” when used in statutes. On the contrary, when we are explaining a legal position, we are not conveying this as a directive (since we are not the authority), but explaining a certain legal position for which there is probably a better phrase as follows: • To create a right = “is entitled to”.

• To create discretionary authority = “may”.
• To create a duty = “shall” [subject to the rule that you should not be using this if it gives the impression that you are issuing a directive.] • To create a condition precedent = “must”.

• To negate a right = “is not entitled to”.
• To negate discretionary authority = “may not”.
• To negate a duty or a mere condition precedent = “is not required to”. The use of the word “shall” just does not work in this day and age of “plain English”. Lastly, if you say “I shall drown”, it is more likely to be misconstrued as a [unfortunate] directive rather than an expression of what is likely to happen. You may think that senior lawyers have spent a little too much time on this, but if you know the numbers of “shall” senior lawyers have deleted and replaced in this lifetime, you would understand. SO, PLEASE USE THE WORD “SHALL” CAREFULLY AND WITH SOME CARE.

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