GeorgerwilliamsW (Indiana)
Posts: 975
Posts: 975
Posted:
I am not one to parse words. Instead, I follow the wisdom of the courts in applying a "reasonable person" argument of interpretation to the vast majority of disputes about intended meaning.
But there is a subtle difference in law regarding the use of shall and will that the legal profession has fought over since--at least--the mid-nineteenth century and wishes would go away. There is even a story (perhaps apocryphal) that General Eisenhower once fired an aid during World War II for not knowing the distinction between shall and will.
It pains me when a poster in another thread makes an unqualified statement, "however use of the word "shall" means a certain action must be undertaken (the board cannot decide whether or not to do it)", that is patently wrong in law. I wish posters here would more carefully research unsubstantiated statements or cite references, especially when discussing issues with legal ramifications. It is misleading at best, and sometimes dangerous to spew out either "common knowledge" or personal opinion without a sound basis. At the very least, it may have the effect of leading people down the wrong path in their thinking, if not action.
I am going to put on my legal professor's motor board and try to explain the difference. (If you want to explore it further, take a look at Fowlers, The King's English at your local library. A quick and dirty search list of legal citations in Lexus is about 32 pages, and I don't, sadly, have the inclination to find one that best makes the case right now.)
In general legal terms, shall is interpreted by the courts as a command, meaning that the acting body or individual is to follow standard procedures regarding hearing and votes and other due diligence before acting. As such, it gives the actor a certain measure of discretion should the process uncover information that may indicate the action is illegal or undesirable.
For instance, in relating to an action by the board of directors of a homeowners association the word shall would most likely enable (were the action adjudicated) the board discretion in determining if a contemplated action would be in the best interests of the members, regardless of the covenants or rules or court order. However, a contrary decision to the court's holding would have to be, most likely, justified to the court.
On the other hand, the word will is understood, by court precedents, to be a requirement that allows the actors no degrees of freedom. Regardless of the outcome, regardless of the consequences, regardless of additional facts, the actor has no discretion in the matter. It is more than a mandate.
Example: if a court said, "the association shall replace a dripping water pipe immediately," the order would not take precedence over another pipe that just broke completely, spewing out thousands of gallons of water by the hour. However, if the court said "the association will replace . . ." the association has no discretion; it must replace the leaking pipe before it replaces the much more damaged broken pipe.
The problem here with "common knowledge" is usage. The statements, "he will" and "he wills" have different meanings. However, when the verb conjugated in the first person (singular and plural), the meaning is utterly unclear, "I will" and "we will" is written the same in both meanings.
The distinction between the conditional tenses of each word help make the distinction clearer: would and should. Should (properly used) is a conditional implying a consequence based on discretion by the actor; would (properly used) implies a simple consequence without the discretion.
Now, before people go over the top here, this distinction between shall and will is also impacted by some contradictory common usage. In some usage apart from legal use, shall implies that the "will" of the actor is not taken into account. This is why lawyers and courts want this distinction to go away. Nevertheless, a skillful lawyer will use the the distinction to great advantage to a judge who understands the role of precedent.
The problem is that lawyers and legislators love the word shall, it sounds so much more high falootin' and impressive. They simply don't know or understand the long-standing distinction and lack of clear usage. Indeed, the Indiana Legislative Service Agency has "banned" (to the extent that it can) the word shall in drafting legislation. If the proposed statute is intended to allow the actor discretion, then the discretion is best spelled out in specific terms. Otherwise, the Agency uses the word will.
But there is a subtle difference in law regarding the use of shall and will that the legal profession has fought over since--at least--the mid-nineteenth century and wishes would go away. There is even a story (perhaps apocryphal) that General Eisenhower once fired an aid during World War II for not knowing the distinction between shall and will.
It pains me when a poster in another thread makes an unqualified statement, "however use of the word "shall" means a certain action must be undertaken (the board cannot decide whether or not to do it)", that is patently wrong in law. I wish posters here would more carefully research unsubstantiated statements or cite references, especially when discussing issues with legal ramifications. It is misleading at best, and sometimes dangerous to spew out either "common knowledge" or personal opinion without a sound basis. At the very least, it may have the effect of leading people down the wrong path in their thinking, if not action.
I am going to put on my legal professor's motor board and try to explain the difference. (If you want to explore it further, take a look at Fowlers, The King's English at your local library. A quick and dirty search list of legal citations in Lexus is about 32 pages, and I don't, sadly, have the inclination to find one that best makes the case right now.)
In general legal terms, shall is interpreted by the courts as a command, meaning that the acting body or individual is to follow standard procedures regarding hearing and votes and other due diligence before acting. As such, it gives the actor a certain measure of discretion should the process uncover information that may indicate the action is illegal or undesirable.
For instance, in relating to an action by the board of directors of a homeowners association the word shall would most likely enable (were the action adjudicated) the board discretion in determining if a contemplated action would be in the best interests of the members, regardless of the covenants or rules or court order. However, a contrary decision to the court's holding would have to be, most likely, justified to the court.
On the other hand, the word will is understood, by court precedents, to be a requirement that allows the actors no degrees of freedom. Regardless of the outcome, regardless of the consequences, regardless of additional facts, the actor has no discretion in the matter. It is more than a mandate.
Example: if a court said, "the association shall replace a dripping water pipe immediately," the order would not take precedence over another pipe that just broke completely, spewing out thousands of gallons of water by the hour. However, if the court said "the association will replace . . ." the association has no discretion; it must replace the leaking pipe before it replaces the much more damaged broken pipe.
The problem here with "common knowledge" is usage. The statements, "he will" and "he wills" have different meanings. However, when the verb conjugated in the first person (singular and plural), the meaning is utterly unclear, "I will" and "we will" is written the same in both meanings.
The distinction between the conditional tenses of each word help make the distinction clearer: would and should. Should (properly used) is a conditional implying a consequence based on discretion by the actor; would (properly used) implies a simple consequence without the discretion.
Now, before people go over the top here, this distinction between shall and will is also impacted by some contradictory common usage. In some usage apart from legal use, shall implies that the "will" of the actor is not taken into account. This is why lawyers and courts want this distinction to go away. Nevertheless, a skillful lawyer will use the the distinction to great advantage to a judge who understands the role of precedent.
The problem is that lawyers and legislators love the word shall, it sounds so much more high falootin' and impressive. They simply don't know or understand the long-standing distinction and lack of clear usage. Indeed, the Indiana Legislative Service Agency has "banned" (to the extent that it can) the word shall in drafting legislation. If the proposed statute is intended to allow the actor discretion, then the discretion is best spelled out in specific terms. Otherwise, the Agency uses the word will.