Variation in the use of modality in legislative texts: focus on shall

On account of objections to its use in legislation raised by experts and Plain Language advocates, shall has disappeared from legislative texts in some jurisdictions and is used ever more sparsely in others, triggering a “modal revolution” in legislative drafting. This paper presents a corpus-based study which outlines a chronologically detailed picture of the frequency of shall in U.K. legislation since the 1970s, showing that it is now approximating zero, and that its decline started in the 1990s, earlier than usually indicated in the literature. It then examines the reasons for this gradual abandonment, and the problems involved in the use of shall in legislative texts, arguing that some of the criticisms levelled at it are based on a limited idea of its meaning, also due to a neglect of studies produced in other neighbouring disciplines, i.e. philosophy of language and philosophy of law, which have shown that shall can legitimately perform both a deontic and a performative function. The discussion of the forms used to replace shall leads to the conclusion that in most cases they are not totally free from the problems for which shall is blamed. Therefore, its suppression and replacement with other forms do not appear to be as effective as usually believed. Highlights: •This paper contributes to the debate on the use of shall in legislative drafting. •It shows its decline in UK legislation started in the early 1990s. •It argues that its gradual abandonment is due to a restricted notion of its meaning. •As philosophers of law have shown, shall can be performative, as well as deontic. • Shall substitutes are not totally free from the problems for which shall is blamed.