西南政法大学 外语学院 学年论文

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本科学年论文

题目：On the Usage of the Mode l Verbs “shall” and “should” in Legal English

外语学院英语（法律经贸方向）专业级班

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Contents

摘要 (1)

A bstract (1)

1.Introduction........................................................ . (3)

2.The Meaning of the Model Verbs of “shall” and “should” (3)

3.Examples and Analyses of the Model Verbs “shall” and “should” in Legal English (5)

3.1Examples an d Analyses of the usage of the “shall” (5)

3.2Examples and Analyses of the usage of the “should” (7)

4.Methods and Skills of Solving the Confusion of “shall” and “should” in Legal

English (8)

5.Conclusion (11)

摘要

在法律英语中，情态动词的使用非常普遍，尤其是“shall”和“should”。二者的用法多种多样，令人眼花缭乱，稍有不慎就会陷入滥用的泥沼中，不能自拔，以致损害我国法律的国际形象，由此造成的严重后果也可能是无法估量的。关于“shall”和“should”的研究，无论是其具体的含义还是实际的使用规范，前人都已做了很多的努力。本文认为在法律英语翻译中，“shall”和“should”两词存在很多的滥用和误用，我将通过一些英汉立法语篇分析其滥用和混用的实例以及相应的解决之道，以最大程度上提高法律英语的准确性和我国法律的国际形象。

关键词：shall；should；情态动词；法律英语

Abstract

The usage of the model verbs is ubiquitous in legal English, especially “shall” and “should”. “Shall” and “should” vary in concrete context. Complicated and confusing meanings in different situation are impeding our legal progress among nations, the more severe of which can cause incalcuable damage. As for the research of “shall” and “should”, numerous endeavors have been done whether concrete meanings or actual usage specification of them. In order to enhance accuracy of legal English and protect our international image of legal process, this paper will continue to explore the meanings of the two words deeply through the analyses of abuse and misuses of them, with putting forward homologous solutions and ways.

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Key words: shall; should; model verbs; legal English

On the Usage of the Model Verbs “shall” and

“should” in Legal English

Liu Jing

School of Foreign Languages 401120

1.Introduction

With the acceleration of economic globalization and the rapid development of information technology, Legal English Translation plays a nearly indispensable role in being geared to international conventions. In the Legal English Translation, the usage of the model verbs “shall” and “should” stirs the widespread public consciousness. There are plenty of confusion of the usage of “shall” and “should” in Legal English due to the characteristic of ambiguities. Misusing and o verusing of “shall” and “should” are common problems existing in Legal English. Hence legal disputes are appearing continuously. Chinese scholars’ current academic research on the usage of the model verbs “shall” and “should” is mainly focused on the analysis of correct and false usage. For instance, Chen Zhongcheng(1992)、Li Kexing(2007)、Xu Guoxing and Sun Shengmao(2003). They observe that “must” or“be required t o ” in English is equal to “必须” in Chinese and “shall” in English is equal to “须” 、“应” or “应当” i n Chinese in Legal English Translation. This viewpoint puts the model verbs “should” in a bad position, because the model verbs “should” can also be translated into“应” or “应当” in Chinese. The translation of Law English is more than a simple equivalence. Certain of experts of Plain Legal English, like Bryan Garner and Michelle Asprey , indicate that we are supposed to discard the usage of “shall” in Legal English. It is not a way to throw away the apple because of the core. And what we need is an effective method for research. As such, this paper will explore the profound meaning of the model verbs “shall” and “should” and address the issue of its confusion usage in order to promote accuracy in Legal English Translation.

2. The Meaning of the Model Verbs of “shall” and “should”

The cultures and systems with dissimilar backgrounds, and the lexical polysemy will affect the interpretation of the words. Similarly, in legal English translation, the meanings of "shall" and "should" vary according to different contexts. In case translators do not lay great emphasis on contexts and meanings, the legal disputes will be triggered off by their mistranslations.

In accordance with the definition of Oxford Advanced Learners Dictionary 7th Edition, the distinctions between “shall” and “will” tend to disappear nearly and there are almost invisible about the usages of “shall”. However, the usages of “shall” are everywhere with complicated and confusing meanings. Black's Law Dictionary, published by West, lauded as the Holy Scrip ture in the field of law, has five definitions for “shall”［4 －5］.

1.Has a duty to; more broadly，is required to．

2.Should ( as often interpreted by courts) ．

3.May．

4. Will ( as a future －tense verb) ．

5.Is entitled to．

“Shall” may refer to mandatory obligation. It can also mean permission a nd allowance. In specific legal English, it is a disturbing matter for translators to decide whether it is mandatory obligation or a rhetoric.

“Should” also has five definitions in the Merriam-Webster Dictionary：

1 ― used in auxiliary function to ex press condition

2 ― used in auxiliary function to express obligation, propriety, or expediency <'tis commanded I should do so ― Shakespeare>

3 ― used in auxiliary function to express futurity from a point of view in the past

4 ― used in auxiliary f unction to express what is probable or expected

5 ― used in auxiliary function to express a request in a polite manner or to soften direct

statement “Should” can be defined as “if” to express subjunctive condition in the legal English translation for economic and trade. It can also refer to express a request in a polite manner or to soften direct statement. As for this definition, it is considerable for definers to ponder when and how to distinguish from the meaning of mandatory obligation of “shall”.

The crossing meanings on wor ds of “shall” and “should” are obligations and responsibilities. The two words both entail the meanings of non-mandatory hortatory and ethics expectation. Therefore, the usage of the model verbs “shall” and “should” in Legal English is entangled with concrete context. Human beings acquire definitions from dictionaries but cannot accept blindly neglecting to consider the particular context.

3. Examples and Analyses of the Model Verbs “shall” and “should” in Legal English

3.1 Examples and Analyses of the usage of the “shall”

The model verb “shall” has various meanings, such as “dutie s and responsibilities”, “will( a s a future －tense verb)”, “should” and “Is entitled to”. It is a perplexed matter what meaning that translators will choose.

(1) At any general meeting a resolution put to the vote at the meeting shall be decided by

a show of hands unless a secret ballot is demanded before or immediately after the declaration of the result of the show of hands by the chair. (Constitution of the Australian Library and Information Association Limited)

(2) If any partner shall become bankrupt, the other partners may terminate the partnership.（Butt, 2001）

(3) The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly.（706-624 Conditions of probation - House Bill）

In example 1, “shall” has zero involvement in the meanings of duties, responsibilities or will( as a future －tense verb). It just means that a resolution can be decided by a show of hands. In or under the circumstances, human beings can absolutely express this meaning with

the simple present. Therefore, the “shall” in example 1 is misused.

In example 2, what does the “shall” mean on earth? If any partner becomes bankrupt when they are signing the contract, can the other partners terminate the partnership? Legal language experts tend to have different views. One is that the other partners cannot terminate the partnership. Because only when one partner becomes bankrupt after they are signing the contract, can the other partners terminate the partnership. The other is that there is no necessary association between the termination “bankrupt” and the time of termination. So in a word, there is some confusion about the meanings.

In example 3, it is a fascinating question whether the defendant can be given a written copy of any requirements. In case of expressing “shall” as a mandatory duty, the meaning of the sentenc e is that “interested party must give a written copy of any requirements to the defendant”. On the contrary, in case of understanding “shall” as a directory dut y, the meaning of the sentenc e is that “interested party may give a written copy of any requirements to the defendant”. Hence, there are two different comprehensions.

General Principles of the Civil Law of the Peopl e’s Republic of China has 156 Articles. The most commonly picked Model Verb is “shall” that is used 310 times in the English version. In general, “shall” is used to indicate responsibilities and obligations that citizens must perform. Nonetheless, “shall” is used to describe objective facts and enjoy rights in large quantities in General Principles of the Civil Law.

（4）【法条】第十一条第一款（前半部分）十八周岁以上的公民是成年人。（中华人民共和国民法通则）

The English translation is “A citizen aged 18 or over shall be an adult.”

The original meaning of this Article is just to describe objectively what age a person need to reach when being an adult. In Chinese, it is a statement sentence. However, in the legal English translation, it uses “shall be” to express “a citizen aged 18 or over” has a duty to be an adult. General Principles of the Civil Law of the People’s Republic of China has two other versions translated by Australia and the United States experts. As for the Article 11, their versions are “A citizen attains majority at the age of eighteen” and “Citizens 18 years old and above are adults.”These two sentences are translated by the simple present tense (Chen

Zhongcheng 2008:12-13). Henc e, it is more succinct and standard to take “shall” out and use the base form.

3.2 Examples and Analyses of the usage of the “should”

In most cases, the model v erb “should” is equal to“应” or “应当”（used in auxiliary function to express obligation, propriety, or expediency）in Chinese in Legal English Translation. But there are some other circumstances. So in specific examples, translators are supposed to be careful in order to improve the standardization in legal English.

(5)A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated.（UCP600）

(6)The terms and conditions of the original credit (or a credit incorporating previously accepted amendments) will remain in force for the beneficiary until the beneficiary communicates its acceptance of the amendment to the bank that advised such amendment. The beneficiary should give notification of acceptance or rejection of an amendment.（UCP600）

In Example 5, it is used in auxiliary function to express futurity from a point of view in the past. It means that if a party takes reasonable measures, he can claim a reduction in the damages in the amount by which the loss should have been mitigated. On the contrary, he can not claim a reduction. Therefore, in this Example, the usage of “should” is correct.

In Example 6, it is used in auxiliary function to express obligation, propriety, or expediency. It means that the beneficiary has a duty to give notification of acceptance or rejection of an amendment. In this example, it is asserted that the beneficiary has an obligation rather than expressing a request in a polite manner or softening direct statement or some else.

“Must” or “be required to ” in English is equal to “必须”（be commanded or requested to）in Chinese and “shall” in English is equal to “须” 、“应” or “应当”（used to express a command or exhortation）in Chinese in Legal English Translation. In Amendment (IX) to the Criminal Law of the People's Republic of China, we can find some more examples to prove

that “shall” is overused.

（7）【法条】二、将刑法五十条第一款修改为：“判处死刑缓期执行的，在死刑缓期执行期间，如果没有故意犯罪，二年期满以后，减为无期徒刑；如果确有重大立功表现，二年期满以后，减为二十五年有期徒刑；如果故意犯罪，情节恶劣的，报请最高人民法院核准后执行死刑；对于故意犯罪未执行死刑的，死刑缓期执行的期间重新计算，并报最高人民法院备案。”（中华人民共和国刑法）

The English translation is “2. Paragraph 1 of Article 50 of the Criminal Law is amended to read: “Where a convict is sentenced to death with a reprieve, i f he or she does not commit any intentional crime during the period of reprieve, the sentence shall be commuted to life imprisonment upon expiration of the two-year period; if he or she has any major meritorious performance, the sentence shall be commuted to imprisonment of 25 years upon expiration of the two-year period; if the criminal has committed an intentional crime with execrable circumstances, the death penalty shall be executed with the approval of the Supreme People's Court. If the crime is committed intentionally but the death penalty is not executed, the period of death penalty with a reprieve shall be recalculated and be reported to the Supreme People's Court for recordation.”

Persons cannot help but thinking why there are so numerous usages of “shall”. In this example, there are not the meaning of “shall” in the original text. However, in the English versions, translators force this meaning into the sentence. What is worse, readers do not know what is the real meaning. In this example, it may b e better to use “must” or the simple present tense.

People are not only confused about the misuse of “shall” but also about the meaning of “obligations and responsibilities”.

Both “shall” and “should”have a meaning of “legal binding effect”. They can ind icate the obligations and responsibilities. Should = (denotes a directory provision): use shall exclusively to mean “have a duty to”. Avoid it when it does not impose a duty on the subject of the clause. But “should” can also be used in auxiliary function to express a request in a polite manner or to soften direct statement. If there is a model verb “should”, it is a interesting question about how to interpret it. In legal English, human being may be confronted with

confusion.

4.Methods and Skills of Solving the Confusion of “shall” and “should” in Legal English

In recent years, the development of plain English movement exerts considerable influence on the writing style of legal document. The premise behind the plain English movement is that legal documents ought to be plainer--and more comprehensible--to the average person. In order to comply with the trend of plain English, a number of relevant laws and regulations have been enacted in numerous English-speaking countries. At the same time, certain plain English experts commence to adapt the traditional legal documents with the authorization of the government department concerned. The practice of their rewrite indicates that plain English, also called "common sense in common language", would become fashionable gradually, rather than really render them more perplexed and incomprehensible, not only to common readers, but to lawyers themselves.

The plain English removes the comprehension obstacles in traditional laws to the greatest extent, in order to convey legal documents information more accurately. Because plain English embody the reader-centered service through words you are familiar with and concise information organizing mode. In consideration of triggering controversy due to the various meanings of “shall”, human beings can substitute the words “may” or “must” for “shall”. Below is a or iginal section of Federal Rules of Evidence and its rewrite:

(8) If a writing is not produced or delivered pursuant to order under this rule,the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.(The original Federal Rules of Evidence)

If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or —if justice so requires —declare a mistrial. (The Restyled Federal Rules of Evidence)

To begin with, the two words of “shall” in the original section have different meanings. It is perplexed and incomprehensible for readers who are unfamiliar with Federal Rules of Evidence to comprehend. The rewrite substitutes the words “may” or “must” for “shall” in order to avoid inconsistent comprehension.

（9）香港特别行政区法院除继续保持香港原有法律制度和原则对法院审判权所作的限制外，对香港特别行政区所有的案件均有审判权。香港特别行政区法院对国防、外交等国家行为无管辖权。香港特别行政区法院在审理案件中遇有涉及国防、外交等国家行为的事实问题，应取得行政长官就该等问题发出的证明文件，上述文件对法院有约束力。行政长官在发出证明文件前，须取得中央人民政府的证明书。（香港特别行政区基本法第十九条）

The English translation is “The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained. The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defense and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defense and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People's Government.”

In Example 9, there are 6 times to use the word “shall”. The first four are typical of abuse. In the author’s view, the two sentences are supposed to use the simple present tense because they state the facts with no obligation or something else. The fifth “shall”corresponds to the Chinese word “应” . “应” is to express a request in a polite manner or to soften direct statement. But “shall”here is to express what is mandatory. It triggers ambiguities. Maybe, it can use the word “should”. The last “shall” corresponds to the Chinese word “须”. “须” is to express what is mandatory. It can use the word “must”.

Both “shall” and “should”have a meaning of “legal binding effect”. They can indicate the obligations and responsibilities. “Shall” is used to express obligat ions and regulations. However, it is sometimes replaced by “Should” for the Chinese counterpart “应当”. The

“Should” in English and “应当” only express a good morally wish instead of an imperative mood demanding someone to act. In this case, the priority is given to the discretion of parties, which also reveals the legislative purpose (illocutionary act) of the statement someone observe a promise conscientiously. The two words have the same meaning of a good morally wish.

In the sentence like “Any person bring ing a malpractice claim shall，within 15 days after the date of filing the action，file a request for mediation.”, a great number of courts in Britain and America observe that “shall” plays a role in a good morally wish rather than an imperative mood demanding someone to act. Therefore, the concrete meaning of “shall” and “should” varies with the specific context. The determination of meanings of “shall” and “should” not only need authoritative English dictionaries and professional legal English dictionaries, but also the purpose of specific legal document. The author believes that persons are supposed to regulate and fix the mean ings “shall” and “should” in legal documents. What is more, people can substitute the words “may” or “must” for “shall”, trying their best to promote accuracy in Legal English.

5.Conclusion

The meanings of "shall" and "should" vary according to different contexts, especially the word “shall”. On the one hand, with the development of the plain English movement, it is wise to discard the usage of “shall” due to various perplexed and incomprehensible meanings of “shall”. On the other hand, there are numerous misuses and abuses of the Chinese-English legal documents, influencing heavily the accuracy of legal English and the international communication. Therefore, people are supposed to comply with the plain English movement, substituting the words “may” or “must” for “shall” and distinguishing the meanings of “shall” and “should”. One must seek useful methods to enhance accuracy of legal English and protect our international image of legal process.

References

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