By Geoffrey Nunberg

California Lawyer, March 23, 2001, p. 23,
Copyright Daily Journal Corporation, reprinted with permission

To a linguist, the most bizarre single moment in the whole post-election brouhaha last fall came during the oral presentations to the Florida Supreme Court, as the parties argued over what the word shall meant in the statute that stipulates when the secretary of state is supposed to certify the vote. Was the outcome of an American presidential election really going to depend on the interpretation of a word that almost no American since Henry James has known how to use properly?

Shall is the flower of what the great grammarian H. W. Fowler called "the English of the English." But it never took root in American soil outside the stony fields of old New England. It’s certainly not the kind of linguistic fill-up you can pick up in the course of a junior year abroad.

Fowler devoted 7 columns to his entry on shall (a model of conciseness when you compare it to the 43 columns on shall and will in the Oxford English Dictionary). Even so, he doubted whether his explanation of the distinction would be of much use to anyone who hadn’t had the advantages of a southern English upbringing; as he said, "Those who are not to the manner born can hardly acquire it."

Anyone who has wrestled with the rules will readily agree. For one thing, the meanings of shall and will change according to the subject. You shall and he shall express an obligation or makes a promise; you will and he will make a simple prediction or a statement of desire. When an Englishman tells you "You shall have your money," he means that he is going to pay you; when he says, "You will have your money," you can whistle for it. But in the first person the meanings are reversed. The difference is summed up in the old story about a Frenchman who is foundering in the waves off Brighton and yells, "I will drown, and no one shall save me." So nobody does.

We Americans, too, can have trouble keeping our heads above water when we try our hand at shall. General MacArthur got it wrong when he announced his intention to recapture the Philippines by saying, "I shall return." By the traditional rule, that’s the sort of thing you say when you’re going out for a quart of milk, not when you’re shaking your fist at an army that has just driven you into the sea.

But apart from using shall in a few fixed expressions such as shall we?, why would we want to touch this word with a barge pole? And it’s hard to escape the feeling that Americans who use shall are not entirely trustworthy-as James Thurber wrote, "Men who use shall west of the Appalachians are the kind who twirl canes and eat ladyfingers."

When I ask lawyers why they are so attached to the word, they usually tell me what their law school professors told them: Shall somehow avoids the ambiguities and imprecisions of ordinary English speech. But that’s hardly the impression I got when I looked up the word "may be construed as merely permissive or directory," particularly "when no right or benefit to any one depends on its being taken in the imperative sense." And Black’s adds that the word often implies "an element of futurity." In short, shall means must except when it means may or should or will.

In Australia, where the plain-language movement has a lot of support, one state has actually banned the use of the word shall from legislation as a way of expressing obligation, insisting that drafters use must instead. It’s an eminently sensible move.

But it’s hard to imagine the American legal establishment tossing shall over the side. As Canadian scholar Frederick Bowers observes, shall is a kind of totem that conjures up the flavor of the law. It also tends to infuse a document with the smell of old port and oak paneling. That has a lot of appeal in a profession whose practitioners are rolling into the 21^st century with the title Esq. still attached to their names.