Why not “shall”?
So why not use “shall” when translating legislation? You can, actually. It has traditionally been used in legislation and is still being used today in some places. Take a look at any EU directive, for instance.
But style guides from common-law jurisdictions advise against using “shall” in legislation. See this one, for instance (from the Office of the Parliamentary Counsel (UK)), which states that:
Office policy is to avoid the use of the legislative “shall”. There may of course be exceptions. One reason for using “shall” might be where the text is being inserted into an Act that already uses it.
For some time now, drafters in Australia, Britain and Canada have steered clear of “shall” (see the references below). In the US, too. Although apparently some US drafters use “shall” in a restricted manner (to only mean “has a duty to”) (Garner, 1995).
So for me it’s a no-brainer: don’t use “shall” because most drafting guidelines from common-law jurisdictions says not to. The most justifiable course for a translator is to mimic target language convention.
But what’s the linguistic reason for not using “shall” in legislation?
The main one is ambiguity. “Shall” can mean many things in legislation, not just obligation. Garner (1995) lists eight different meanings of “shall” in legislation. He says that this Swiss Army knife of legalese violates the “golden rule” of legal drafting: use terms consistently and to mean only one thing.
“Must” is better because it’s harder to misuse. You’ll only want to use it for obligation; not the other functions “shall” gets used for (e.g., policy language and future tense).
The guidelines could espouse the responsible use of “shall” that those US drafters mentioned aim for (like most contract style guides do). But they don’t.
The grey areas — when “must” feels out of place
Sometimes “must” doesn’t feel right. I find these grey areas rear their heads more when I’m translating legislation-type documents than pure legislation. By legislation-type documents, I mean anything that has a regulatory feel to it. E.g., university regulations, company policies, articles of association and codes of conduct.
Because these documents are legislation-like, my default starting point is to not use “shall” in them. But sometimes they have a contract feel to them. The wording has people making promises and seems to be calling for the “shall” I use for these instances of obligation in contracts.
I probably wouldn’t get this inkling to use “shall” if I didn’t use it in contracts. But even so, the nuance is still there. “Shall” doesn’t have to be the answer, but something other than “must” is needed.
Recently, for instance, I was translating a piece of university legislation. Clearly a case, according to my criteria, of when I should use “must” for obligation.
This was an internal document regulating university action in a particular sphere. “Must” worked most of the time, but there were a few sentences about promises the university had to ensure students, staff and contractors made. In these instances, “must” didn’t fit.
In the end, I settled for “undertakes”. One sentence went something like, “[…] students must undertake to […]”; another: “The University must put measures in place so that all students undertake to […]”. (Ugly, I admit, but accurate.)
“Shall” would have fit perfectly (although not as phrased above). But it would have been a misfit with the rest the document. If I were going to use “shall” in these sentences, why not use it for obligation elsewhere in the document?
Codes of conduct, in which members make promises about how they will act, are another grey area. In such documents, “shall” or something else usually sounds better than “must”.
I came across this problem when I was revising the translation of APTIC’s code of ethics. I ended up using present tense for the promises. Mainly because the text that had inspired the code, AUSIT’s code of ethics, used present tense. I thought it best to stick as close as possible to the original AUSIT text. In fact, my revision efforts mainly entailed cutting and pasting from the AUSIT code.
This, of course, is not the only solution for this type of document. For instance, the ITI’s and the CIOL’s codes each do something different — the CIOL’s uses “will” and the ITI’s, “shall”.
Either solution would have worked fine in the APTIC code. As I said above, I made my decision by deferring to the AUSIT text.
In a nutshell
As a rule, I try to avoid “shall” in legislation and legislation-type documents. My first choice for obligation is “must”, mainly to follow the current convention in common-law jurisdictions. When “must” doesn’t work, I use “will”, “shall´” or something else.
If, as a rule, you were going to use “shall”, I’d suggest using it in the restricted way mentioned above (i.e., to mean only “has a duty to”).
Whatever you do, this is something you need to get straight. As always, having coherent criteria gives you a leg to stand if you have to justify your choices. At least be consistent in the one document.
Australian drafting guidelines: http://www.opc.gov.au/about/docs/Plain_English.pdf
Garner, B.A. (1995) A Dictionary of Modern Legal Usage, 2nd edition. See this page for excerpts from Garner on “shall”: http://www.slaw.ca/2011/05/26/shall-we-keep-using-shall-or-must-we-stop/
Two articles on why to use “must” for obligation in legislation: https://plainlanguage.gov/guidelines/conversational/shall-and-must/ and https://www.faa.gov/about/initiatives/plain_language/articles/mandatory/
US legislation drafting guidelines (probably not official) https://plainlanguage.gov/guidelines/conversational/shall-and-must/
US drafting advice that says to use “shall” for obligation: https://legcounsel.house.gov/HOLC/Drafting_Legislation/Drafting_Guide.html#VIIB