SHALL - The Law Mind Legal Dictionary

SHALLAuthored

The Law Mind • 1203 words

Definition

"Shall" is a modal auxiliary word used in statutes, contracts, regulations, court rules, and other legal instruments to express obligation, command, or mandate. Its legal meaning is contested and context-dependent, making it one of the most litigated words in legal drafting.

Mandatory (primary legal meaning): In most legal instruments, "shall" imposes a duty — it commands that something must be done, without discretion. A statute providing that an officer "shall" give notice means notice is required, not optional.

Permissive (secondary construction): Courts frequently construe "shall" as equivalent to "may" — particularly when a mandatory reading would produce an absurd result, when directed at the government rather than a private party, or when no individual right depends on strict compliance. This is the source of enormous interpretive difficulty.

Precatory or directory (weakened form): In some contexts, "shall" is treated as merely expressing intention or direction rather than legal compulsion, particularly when the consequence of non-compliance is not specified.

Common Language

Modern common usage (Wiktionary): Used before a verb to indicate simple future tense in the first person ("I shall return"); also used to indicate determination or obligation in the second and third persons ("you shall comply").

Historical common usage (Webster's 1913): "Shall" as an auxiliary indicates a duty or necessity derived from the speaker — used in the second and third persons to express command or promise ("you shall go; he shall go"), and in the first person to express simple futurity ("I shall go").

The gap matters here in both directions. In ordinary modern English, "shall" sounds formal but is often interchangeable with "will" — most speakers treat them as synonyms expressing futurity. In legal instruments, however, the choice of "shall" over "may" or "will" is supposed to carry mandatory force. The problem is that courts have eroded this distinction so thoroughly through permissive construction that drafters can no longer rely on "shall" to unambiguously impose a duty. Modern plain-language drafting movements increasingly recommend replacing "shall" with "must" for obligations, precisely because "shall" has become unreliable.

Common Confusion

Shall vs. May: The central confusion in statutory interpretation. "May" is permissive; "shall" is supposed to be mandatory. Courts often collapse this distinction, reading "shall" as "may" when mandatory construction would be inconvenient or would produce harsh results. The doctrinal rule that "shall" means "may" when directed at the government (as stated in Black's 1st edition) compounds the confusion — the same word does different work depending on who is commanded.

Shall vs. Must: Modern drafting authorities (including the Federal Plain Language Guidelines and Bryan Garner's drafting guides) recommend "must" as the unambiguous word for legal obligation and "shall" as a term to be avoided or abandoned. In older instruments, this distinction does not exist — "shall" carries the mandatory weight that modern drafters assign to "must."

Shall vs. Will: In traditional grammar, "shall" in the first person expresses futurity and "will" expresses volition; in the second and third persons, the roles reverse. Legal instruments historically borrowed this construction, but modern drafting has largely abandoned grammatical person as a guide to meaning.

Why It Matters in Research

This term is a structural hazard for corpus researchers working across historical periods. The word "shall" appears on nearly every page of every statute, contract, regulation, and court rule ever written — but its meaning is not stable.

Three specific traps:

First, temporal instability. Pre-20th-century instruments use "shall" with greater confidence in its mandatory force. Post-1980s instruments — particularly those drafted under plain-language initiatives — increasingly substitute "must" for mandatory obligations, leaving "shall" in a residual, weakened role or removing it entirely. A search for mandatory obligations using "shall" will over-include in older texts and under-include in newer ones.

Second, the government-directed exception. Black's 1st edition states the rule plainly: when "shall" is directed at the government, courts construe it as "may" unless contrary intent is manifest. This judicial habit means that even clearly worded mandatory provisions directed at agencies or officers have been softened in practice. Researchers tracing administrative compliance obligations must check interpretive case law, not just the statutory text.

Third, jurisdictional interpretation rules. Some jurisdictions have enacted rules of construction specifying how "shall" is to be read in their statutes. Where such rules exist, they displace common-law interpretation. Where they don't, courts apply varying presumptions. A provision that is mandatory in one jurisdiction may be directory in another under identical language.

Researchers using the Law Mind corpus should be alert to the connection between "shall" and the shall/may distinction in rules of construction, statutory interpretation doctrine, and the history of legal drafting reform. The word is often the pivot point in enforcement and standing disputes — whether a duty is mandatory determines whether its breach gives rise to a remedy.

Historical Dictionary Support

The historical dictionaries converge on the mandatory/permissive tension but reach it from different angles.

Bouvier is the most analytically complete, identifying the two governing categories: futurity and mandate. Bouvier notes that where a statute declares something "shall" be done, "the natural and proper meaning is that a peremptory mandate is enjoined" — but immediately cross-references Stroud's Legal Dictionary for exceptions, signaling that the mandatory presumption is rebuttable.

Black's 1st edition states the government-directed exception as a rule of thumb tied to specific authority (95 U.S. 170), treating permissive construction of "shall" as settled doctrine when the government is the commanded party. This is the most practically significant statement in the historical corpus and is frequently overlooked by researchers who assume "shall" is uniformly mandatory.

Black's 2nd edition is more nuanced and more complete. It acknowledges that "shall" is "generally imperative or mandatory" but lists the conditions for permissive construction: carrying out legislative intention, no right or benefit depending on mandatory reading, and no public or private right impaired by a permissive reading. This three-part framework anticipates modern judicial methodology.

Rapalje & Lawrence and Anderson's Dictionary of Law do not appear to contain entries directly on point — the source material provided for those dictionaries concerns unrelated entries (sewers and strict settlement, respectively). Researchers should not rely on those sources for guidance on "shall."

What the historical dictionaries collectively miss: the plain-language drafting movement's rejection of "shall" as unreliable, the systematic substitution of "must" in modern instruments, and the interpretive chaos that has made "shall" a term of art requiring case-by-case construction rather than a reliable signal of obligation. None of the historical sources anticipates that "shall" would become a word courts routinely rewrite.

Jurisdictional Note

Some jurisdictions have statutory construction acts that define "shall" as mandatory within their codes, providing a textual anchor that limits judicial permissive construction. Federal courts have no equivalent uniform rule, and the shall/may distinction in federal statutes remains governed by common-law canons and case-by-case analysis. Researchers working across jurisdictions should identify whether a local construction statute applies before drawing conclusions from "shall" language in primary sources.

SHALLmain

Black's Law Dictionary • 1891

As against the government, the word "shall," when used in statutes, is to be construed as "may," unless a contrary intention is manifest. 95 U. S. 170.

SHALLmain

Black's Law Dictionary (2nd Ed.) • 1910

As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to ‘“may,’) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Also, as against the government, “shall” is to be construed as “may,” unless a contrary intention is manifest. See Wheeler vy. Chicago, 24 Ill 105, 76 Am. Dec. 736; People v. Chicago Sanitary Dist., 184 Ill. 597, 56 N. E. 953; Madison vy. Daley (C. C.) 58 Fed. 753; Calro & F. R. Co. v. Hecht, 95 U. S. 170, 24 L. Ed. 423.

SHALLmain

Rapalje & Lawrence • 1883

(1184) keep in order sewers, streams, sluices and embankments within their district. In England they form courts of record, and have power to make orders and assess rates. Cal. Sew.; 3 Steph. Com. 296. § 2. In its modern and more usual sense, a sewer means an underground or covered channel used for the drainage of two or more separate buildings, as opposed to a "drain," which is a channel used for carrying off the drainage of one building or set of buildings in one curtilage. See DRAIN, 2. 23. The English Metropolitan Commissioners of Sewers were created by Stat. 11 and 12 Vict. c. 112; they were abolished by Stat. 18 and 19 Vict. c. 120, and their functions transferred partly to the metropolitan vestries and district boards, and partly to the Metropolitan Board of Works (q. v.) SEWER, (when includes a wall). Wilberf. Stat. L. 130. 328. (in public health act). L. R. 1 Q. B. SEWER, COMMON, (in a city charter). 110 Mass. 433.

SHALLv.

Websters Unabridged Dictionary (1913) • 1913

To owe; to be under obligation for. [Obs.] "By the faith I shall to God" Court of Love. To be obliged; must. [Obs.] "Me athinketh [I am sorry] that I shall rehearse it her." Chaucer. As an auxiliary, shall indicates a duty or necessity whose obligation is derived from the person speaking; as, you shall go; he shall go; that is, I order or promise your going. It thus ordinarily expresses, in the second and third persons, a command, a threat, or a promise. If the auxillary be emphasized, the command is made more imperative, the promise or that more positive and sure. It is also employed in the language of prophecy; as, "the day shall come when . . . , " since a promise or threat and an authoritative prophecy nearly coincide in significance. In shall with the first person, the necessity of the action is sometimes implied as residing elsewhere than in the speaker; as, I shall suffer; we shall see; and there is always a less distinct and positive assertion of his volition than is indicated by will. "I shall go" implies nearly a simple futurity; more exactly, a foretelling or an expectation of my going, in which, naturally enough, a certain degree of plan or intention may be included; emphasize the shall, and the event is described as certain to occur, and the expression approximates in meaning to our emphatic "I will go." In a question, the relation of speaker and source of obligation is of course transferred to the person addressed; as, "Shall you go" (answer, "I shall go"); "Shall he go" i. e., "Do you require or promise his going" (answer, "He shall go".) The same relation is transferred to either second or third person in such phrases as "You say, or think, you shall go;" "He says, or thinks, he shall go." After a conditional conjunction (as if, whether) shall is used in all persons to express futurity simply; as, if I, you, or he shall say they are right. Should is everywhere used in the same connection and the same senses as shall, as its imperfect. It also expresses duty or moral obligation; as, he should do it whether he will or not. In the early English, and hence in our English Bible, shall is the auxiliary mainly used, in all the persons, to express simple futurity. (Cf. Will, v. t.) Shall may be used elliptically; thus, with an adverb or other word expressive of motion go may be omitted. "He to England shall along with you." Shak.

shallverb

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Used before a verb to indicate the simple future tense in the first person singular or plural. | Used similarly to indicate determination or obligation in the second and third persons singular or plural. | Used in questions with the first person singular or plural to suggest a possible future action. | To owe.

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