After spending a lot of time researching Black’s Law for the definitions of the words “may,” “must,” and “shall” when used in legislation, one person commented,
It seems to me that these three words have very specific legal meaning when used in legislation, and anyone who does not speak legalese could be misled by assuming the meaning, including legislators who are not attorneys. Especially since attorneys are actually writing the legislation from the ideas of the legislators.
We share these same concerns, so we asked former judge, Paul Nally, to give us a brief overview.
My sympathy lies with any who tries to wade through Black’s, so I’ll try to bring a bit of “responsible simplicity” to the matter. But, words and phrases are of critical importance in both law and contracts, and, to me, rank above the Socratic process, since without them, the Socratic process could not exist, in verbal communication, anyway.
In the study of law, it is axiomatic, and in most states’ codes made mandatory, that words and phrases used in law (and contracts) are to be understood in their most common usage unless a statute defines them otherwise or the surrounding words are of such technical or scientific precision as to require a different applicable meaning.
The auxiliary helping words/verbs, may, must, and shall, have been the sub-subject of many a case law. Without exception, “shall” is to always be understood as a command, there can be NO discretion as to whether or not to do a thing when the word “shall” is used. Although, “shall” is impliedly anticipatory that a particular mode of conduct or a specific degree of result will be sought, chosen, or expected. When a statute allows alternatives, one of the alternatives, if selected to be followed, may be commanded to be done a certain way, in which case there can be no discretion if the word “shall” is used. As a matter of fact, in a case many years ago, the Georgia Supreme Court ruled that the word “should”, which was contained in a lawyer’s ethics rule, was to be understood as “shall” due to the importance of the subject matter of the ethic rule as applied to attorney conduct as seen in the eye of the public. That, of course, was an example of “judicial legislation” but only as to a professional rule rather than a state’s legislation, and therefore excusable.
The word “must” is likewise a command and auxiliary helping word/verb, but is an imperative, not only leaving no room for any discretion, but absolute compliance without question or doubt. The mere existence of a concept or a thing or a course of action makes mandatory compliance and a mandatory degree of anticipated result with the use of the imperative command.
As an example of the difference between “shall” and “must”, try to understand the different meanings in the following:
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers,”
“To make all laws which must be necessary and proper for carrying into execution the foregoing powers,
Between these two, “shall” takes into account the fallibility of man and mental processes, whereas, “must” does not permit fallibility, let alone, less than perfect mental process. I really wish the second way would have been the way our founders had written it. We’d probably had less problems today.
“May” is the little booger that gets a lot of folks into trouble. No few servants have read laws telling them that they “may do this” and “may do that” or “may do this other” and decided that there were too many choices so their minds make the assumption that they “may not do any”. Uh-oh, now they’re in trouble.
“May” is always a word which provides discretion. Where a law provides discretion, there is no violation of a criminal law as readily as there would be with the words “must” and “shall”, but the unskillful exercise of discretion may be actionable for review as an “abuse of discretion”. You may vehemently disagree with the way a public servant decides a question or performs a particular duty, but if the law provides discretion, all you can do, absent an abuse, is disagree … and not vote for him next time.
I do hope this has been helpful.