What it is
Binding text says that something is required, permitted or forbidden, and it does so with a small set of wordings the drafting tradition supplies. The set is short enough to look like vocabulary and behaves like formula: which member goes where is settled before the sentence is written.
The sets do not line up across languages. Some traditions carry the force on an auxiliary, others on the present indicative of the operative verb. That is a difference in where the force sits, not a gap, and reading the auxiliary as its seat leads to hunting for one in a version that never prints it.
Three neighbours share ground here and none keeps this. The enacting formula is performative and its modal surface belongs to the version that prints it; a court's interpretation line is that court's own practice; whether a text type admits an equivalent at all belongs to genre and legal effect, which the terminology section keeps. What is left is the choice made when binding text is composed into English with no version to copy.
Where the fixity comes from
Two drafting authorities point in opposite directions, and the divergence is the record.
- The Joint Practical Guide, at 2.3.2, describes institutional practice: in the enacting terms of binding acts, other languages such as French use the present tense while English generally uses shall, and the future tense is to be avoided in both wherever possible.
- The drafting guidance of the Office of the Parliamentary Counsel, at 1.2.9, states the opposite policy for its own texts: the legislative shall is to be avoided, with insertion into an Act that already uses it named as a possible exception.
- Boginskaya measures the first practice on five English-language United Nations instruments totalling 50,259 words. Of 625 modal verbs, shall accounts for 508, or 81.1 per cent, against may at 14.6, should at 3.4 and must at 0.8, and she argues for restricting shall to the sense of having a duty. Those figures describe United Nations drafting and no other.
Each guidance document binds the texts of the body that issues it and nothing else, an institutional warrant beside a codified one. The examples below sit at the codified level: the wording of a given act, which moves only when the act is amended.
Consequences for translation
- Inside a language version nothing is chosen. The obligation formula is what that version prints, and restoring an auxiliary because the English has one composes a wording the version does not carry.
- Outside a version, a translator into English selects a tradition rather than a word. That belongs in the brief, settled once for the document; a text that switches halfway has changed its allegiance without saying so.
- A house rule against shall is a finding inside that house and a preference outside it. A reviser applying it to the text of another body is applying somebody else's guidance.
- The empty approximation tier is a claim. Nothing is absent here for a substitute to stand in for: either the version supplies the wording, or two competing wordings are both available and the work is choosing between them.
Examples
EN>FR
- Source: shall be attached to the public documents referred to in that paragraph, shall be used as a translation aid and shall have no autonomous legal value
- Target: sont joints aux documents publics visés audit paragraphe, sont utilisés en tant qu'aide à la traduction et sont dépourvus de valeur juridique autonome
- Comment: Regulation (EU) 2016/1191, Article 8(1), English and French versions. Three occurrences of shall against three present indicatives in one provision: 2.3.2 of the Joint Practical Guide visible in a single sentence. The third states a legal effect rather than an obligation, so the auxiliary is the drafting default and not a mark of deontic force.
EN>NL
- Source: shall be attached to the public documents referred to in that paragraph, shall be used as a translation aid and shall have no autonomous legal value
- Target: worden gehecht aan de in dat lid bedoelde openbare documenten, worden gebruikt als vertaalhulp en hebben geen autonome juridische waarde
- Comment: Same provision. Dutch does what French does, and so does the German version, at werden ... beigefügt. Three target versions against one source settle the direction: the auxiliary is the English default, not something the others lack. A translator supplying moeten would add an obligation where the act states a fact.
References
- Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation, 2015 edition. Luxembourg: Publications Office of the European Union. Section 2.3.2, at p. 12.
- Boginskaya, O. (2022). "A Corpus-Based Study of Deontic Modality in Legal Discourse." Rasprave 48(1), 1 to 26.
- Office of the Parliamentary Counsel (2024). Drafting Guidance, March 2024 edition. London: Office of the Parliamentary Counsel, paragraph 1.2.9, at p. 4.
- Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012, Article 8(1), English, French, Dutch and German language versions.