西南政法大学 外语学院 学年论文

西南政法大学本科学年论文题目：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）专业级班学号姓名指导教师成绩西南政法大学教务处制20 年月日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 LegalEnglish (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AbstractThe 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..Key words: shall; should; model verbs; legal EnglishOn the Usage of the Model Verbs “shall” and“should” in Legal EnglishLiu JingSchool of Foreign Languages 4011201.IntroductionWith 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 <if he should leave his father, his father would die ― Gen 44:22(RSV)>2 ― used in auxiliary function to express obligation, propriety, or expediency <'tis commanded I should do so ― Shakespeare> <this is as it should be ― H. L. Savage> <you should brush your teeth after each meal>3 ― used in auxiliary function to express futurity from a point of view in the past <realized that she should have to do most of her farm work before sunrise ― Ellen Glasgow>4 ― used in auxiliary f unction to express what is probable or expected <with an early start, they should be here by noon>5 ― used in auxiliary function to express a request in a polite manner or to soften directstatement <I should suggest that a guide…is the first essential ― L. D. Reddick> “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 English3.1 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 bya 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 withthe 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。