WE'VE looked at an American effort to clean up the language the federal government uses to talk to ordinary people. Now we return to that topic with some sharper focus: is shall needed in statutes, regulations, contracts and other legal writing?

The man most famously associated with "legal writing" in America says no. Bryan Garner, in the 2001 edition of his Dictionary of Modern Legal Usage, points out that shall is in no way as precise as many lawyers think it is. "That's why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa."

Shall is thought to primarily convey obligation (except for those few who still use it to mean the simple future in the first person). But this is not always so. To cite just some of Mr Garner's examples,

"the court shall enter an order" obligates the court to do something.

the court to do something. But, as commenters pointed out last week, a shall-ful obligation can be unclear. "Objections to the proposed modification shall be filed upon the debtor" is a common locution in legalese, but it does not impose an obligation; it says what must happen if one does have an objection—which one may not.

one does have an objection—which one may not. Explanatory shall: "The sender shall have fully complied with the duty to send notice when the sender receives electronic communication." This is not imposing a duty, but explaining that operation X is complete only when condition Y obtains. It really just serves to define something, in this case defining when the sender has "fully complied with the duty to send notice".

something, in this case defining when the sender has "fully complied with the duty to send notice". Finally there are "directory", not "obligatory" cases when courts have held that shall really means should. "Anyone bringing a malpractice claim shall, within 15 days after the filing of the action, file a request for mediation."

As Mr Garner says, the difficulty is such that 76 pages of Words and Phrases, a multi-volume book of legal definitions, are consumed by the case-law around shall. A few of the legal arguments back and forth about it can be found in the image from Mr Garner's book above. He doesn't feel that shall itself is the problem, but that it has so many senses lawyers may simply not be educable on all of them. Instead, it is probably far simpler to direct them to something clearer: must, will, may not, has an entitlement to, and so forth. This isn't "people are stupid, so we must dumb down," as some commenters see it. It's "this word is so confusing, even to many very clever people, that the alternatives are better."

The alternatives are not problem-free, Mr Garner says. Will means a variety of things; must can be "inappropriately bossy" in friendly contracts setting out the duties of, say, two parties in a joint-venture. But they are still clearer. And they have the advantage of being words that ordinary people use outside of legal life. As such, they're less likely to be misunderstood. When in doubt, plain is still best.