RICHARD FOLEY

LEGISLATIVE LANGUAGE IN THE EU: THE CRUCIBLE

ABSTRACT. The present article discusses three actors whose interests shape legislative
language in the EU to a significant extent: the lay reader, the legislator and the linguist.
As the end user of legislation, the first is concerned with inscription – a reliable, i.e.,
transparent, final product. The second has a strong professional interest in prescription
– fixing meaning to achieve consistent application of the law. The third is and must be
utterly disinterested, focusing on description – a systematic account of prevailing usage.
The dynamic obtaining among these interests is illustrated through a study of ambiguity
in the use of the deontic modals shall, may and must in legislation. The discussion first
takes up inconsistencies of use that compromise transparency in what is assumed to be
unambiguous drafting. It then goes on to sketch attempts within the legal profession to
address issues of discrepant usage in the modals and outlines mediating mechanisms, all
feasible in and some unique to the EU, which might contain the tensions identified.

1. I NTRODUCTION

The European Union is predicated on a body of legislation that seeks to

accommodate a complex array of social, political and linguistic interests.
Distinctive of this comparatively new legal order is that the eleven official
languages used to inscribe it are unfettered by tradition and, at the same
time, the objects of a singularly well-resourced language engineering.
The article discusses three actors whose interests circumscribe EU
legislative language to a significant degree: the lay reader, the legis-
lator and the linguist. The first is principally concerned with inscription
– getting quality, that is, transparency,1 in the legislative product he or
she consumes. The second embraces a strong professional interest in
prescription – mandating meaning in order to avoid ambiguity and ensure
consistent application of the law. The third focuses on description –
producing rigorously ‘disinterested’ accounts of language use.
In contrast to the common-law jurisdictions, in the EU these actors are
found under a single institutional roof; indeed, their interests converge
quite literally on the desk of the lawyer-linguist.2 Significantly, in
1 See http://europa.eu.int/scadplus/leg/en/cig/g4000t.htm#t4. Transparency will be
used here in the second of the two senses defined, i.e., “more easily readable instruments.”
2 The role of the jurist-linguist is discussed in Sarcevic (1997: 114–115). The author is
indebted to Ms. Minna Heikkilä at the European Parliament and Mr. Veli-Pekka Paukku

International Journal for the Semiotics of Law

Revue Internationale de Sémiotique Juridique 15: 361–374, 2002.
© 2002 Kluwer Law International. Printed in the Netherlands.
362 RICHARD FOLEY

providing a forum where the actors may negotiate their often diver-
gent interests, this dynamic offers a crucible for the study of legislative
language. The ingredients are unique in scale and perhaps in kind as well:
eleven languages are being harnessed to describe a comparatively new
legal order, whereby none, at least in principle, need be constrained by
the legal language associated with its parent linguistic tradition.
The focus here is on the legislator as the originator of language to which
the lay reader and linguist react; space precludes all but a brief mention
of the creative input of the last two actors to the process, e.g., the Plain
Language Movement and terminology work. Within this framework, the
interests of the actors are compared and contrasted through a study of the
modal verbs shall, may, and must in EULEG,3 a corpus of EU legislation
compiled by the author. These modals and their negations4 (shall not, may
not, must not) can be regarded as a reliable touchstone, inasmuch as they
are the principal means of conveying the three legally essential deontic
notions of obligation, permission and prohibition.5 That six forms are used
to express three meanings in fact reveals the focal issue here: the situ-
ation is anathema to the legislator, for it suggests that a distinction may be
drawn between words where none was intended, or that a word may allow
ambiguous6 readings.
The section to follow takes up the meanings shared by the three actors
as users of the general language and contrasts these with legal usage.
This discussion serves as a backdrop to the next section, which takes up
discrepant notions of meaning in legislative language and their implica-
tions for the actors. The following section then goes on to sketch mediating
mechanisms available in the EU context that might reconcile the tensions
noted. Together, these mechanisms form the space – the crucible – in which
legislative language is tested and refined. The final section reviews the
arguments presented and suggests prospects for future research.
at the European Court of Justice for personal communications elucidating the work of the
lawyer-linguist. S. Sarcevic, New Approach to Legal Translation (The Hague: Kluwer Law
International, 1997).
3 EULEG is described in detail in Foley (2001). R. Foley Going Out in Style? Shall in
EU Legal English (Lancaster: UCREL Technical Papers Volume 13, 2001), 185–195.
4 Space precludes a discussion of the negative forms. For discussions of shall not vs.
may not, see Bowers (1989: 37) and Kurzon (1986: 23). F. Bowers, Linguistic Aspects
of Legislative Expression (Vancouver: University of British Columbia Press, 1989). D.
Kurzon, It is Hereby Performed . . . Explorations in Legal Speech Acts (Amsterdam: John
Benjamin Publishing, 1986).
5 See the summary of von Wright in Vihla (2000: 25). M. Vihla, Medical Writing
Modality in Focus (Amsterdam: Rodopi, 1999).
6 Ambiguity will be defined here as the existence of antagonistic readings in the sense
described in Cruse (2000: 108). A. Cruse Meaning in Language (Oxford: OUP, 2000).
 LEGISLATIVE LANGUAGE IN THE EU 363

2. S HARED T OKENS

The modal meanings of shall, may and must in general and legal usage are
exemplified in Table I.7

2.1. Shall
Among the three senses they distinguish for shall, Quirk et al.8 identify
a “legal or quasi-legal” use, shown in (1) and (2). Interestingly, they
do not specify the meaning, but only provide the stylistic characteriza-
tion, begging comparison with Bowers’ observation that “[shall in legal
language is] used as a kind of totem, to conjure up some flavour of the
law”.9 Other analyses of general usage assign shall the meaning of obliga-
tion10 but suggest that the modal is obsolete or archaic11 in the general
language. Coates, for example, in her analysis of the Brown and LOB
corpora concludes: shall in the sense of obligation is “virtually restricted
to formal legal contexts”.12 Accordingly, one could well ask whether (1)
falls under general usage.

2.2. May
May has two meanings, epistemic “possibility” and deontic “permission”,
which are well attested in general and legal usage alike. Permission can
be seen as a special, or stronger, case of possibility in that one can only
reasonably give permission to do something that is possible. Thus (3)
subsumes “it is possible that the Senate will override a presidential veto
. . .”. The following is an example that can be readily construed in both
senses:
7 As the focus is on legislation, the presentation of modals in the general language is
confined to third person declarative sentences. Examples (1) and (2) are from Quirk et al.;
(3), (4), (7) and (8) have been formulated by the author; (5) and (6) are a single sentence
from Regulation EC/98/0974 on the Introduction of the Euro; (9) is from Article 7(19)
of Commission Recommendation 97/344/EC on improving and simplifying the business
environment for business start-ups.
8 R. Quirk, S. Greenbaum, G. Leech and J. Svartvik A Grammar of Contemporary
English (London: Longman, 1972), 99.
9 F. Bowers, Linguistic Aspects of Legislative Expression (Vancouver: University of
British Columbia Press, 1989), 294.
10 D. Crystal and D. Davy, Investigating English Style (London: Longman, 1969), 206–
207.
11 G. Leech, Meaning and the English Verb (London: Longman, 1971), 81.
12 J. Coates, The Semantics of the Modal Auxiliaries (London/Canberra: Croom Helm,
1983), 189–190.

General
Deontic
Shall (1) The vendor shall maintain
the equipment in good repair
May (3) The Senate may override
a presidential veto if it has
a two-thirds majority. (‘The
Senate has the authority to
override a presidential veto’).
Must (7) Passengers must show
their passports to the immi-
gration officers. (‘Passengers
have an obligation to show’)
364
TABLE I
Examples of modals in general and legal usage
Legal
Epistemic Deontic Epistemic
– (2) The vendor shall maintain –
the equipment in good repair
(4) The evening flight may (5) Notwithstanding the (6) which may be necessary
be overbooked (‘It is possible provisions of paragraph 1, in order to: – redenominate
that the evening flight will be each participating Member in the euro unit outstanding
overbooked’) State may take measures debt issued by that Member
RICHARD FOLEY
State’s general government,
as defined in . . .
(8) They must be at the airport (9) The applicant must attach –
by now. (‘It can be concluded to the completed question-
(from the time elapsed and the naire a number of relevant
distance to the airport) that documents.
they are at the airport’)
 LEGISLATIVE LANGUAGE IN THE EU 365

(10) Each participating Member State may, for a period of up to six months after the end of
the transitional period, lay down rules for the use of the banknotes and coins denominated
in its national currency unit . . .

From the perspective of a Member State, this doubtless indicates

permission, or the right to lay down the rules described. To other readers,
this could very well signify the mere possibility that such rules exist.
Example (4) also admits of a less likely deontic reading: ‘Someone (e.g., a
clerk) has permission to overbook the flight.’

2.3. Must
In general usage, must, like may, has both an epistemic and deontic
meaning, exemplified in (7) and (8) respectively. This potential ambiguity
has been cited as a shortcoming of must vis-à-vis shall for expressing
the notion of obligation in legal language.13 Yet, the presentation of
arguments and drawing of conclusions is hardly the function of legis-
lative language, whereby the likelihood of epistemic readings of must
is remote. Indeed, of the 282 occurrences of must in EULEG, none
allows an epistemic reading. These essentially qualitative observations
must be further interpreted in light of the quantitative data in Figure 1
below.14
The frequency of shall here proves to be distinctive as a stylistic feature
in terms of both criteria presented by Crystal and Davy: it occurs most
frequently within the variety of language in question and is less shared
by other varieties.15 Particularly striking is that the frequency of shall in
EULEG approaches that of semantically void function words such as the,
to and and.16 The high frequency belies principled use; in other words,
notwithstanding Crystal and Davy’s categorical “shall is invariably used to
express what is to be the obligatory consequence of a legal decision . . .”,17
not every occurrence of the modal in legislative language can possibly be
imposing an obligation.
The frequency of may vis-à-vis the other modals indicates that it is
clearly “entrusted” in legal usage with the task of conveying the rather
13 F. Bowers, Linguistic Aspects of Legislative Expression (Vancouver: University of
British Columbia Press, 1989), 33.
14 General usage is represented by frequencies from the LOB and Brown corpora. Legal
usage is based on EULEG.
15 D. Crystal, “Stylistic Profiling”, in English Corpus Linguistics, eds. K. Aijmer and B.
Altenberg (London and New York: Longman, 1991), 121–238. Here pp. 228–229.
16 R. Foley, Going Out in Style? Shall in EU Legal English (Lancaster: UCREL
Technical Papers Volume 13, 2001), 185–195. Here p. 192.
17 D. Crystal and D. Davy, Investigating English Style (London: Longman, 1969), 206–
207.
366 RICHARD FOLEY

Figure 1. Modals in general and legal usage.

frequent notions of possibility and permission; i.e., no other modal or

modals seem to be used in its place.
The data for must show that it is not really a significant player in
comparison to shall in legal usage; it nevertheless merits consideration as
a replacement for shall due to its familiarity to the lay reader in general
usage.18

3. D IVERGENT I NTERESTS : U SE AS A BUSE

The above account of shall, may and must, according to which the modals
may have more than one meaning (may, must) or lack meaning altogether
(stylistic shall) signals a direct violation of The Golden Rule of Drafting:
[T]he competent draftsman [sic] makes sure that each recurring word or term has been used
consistently. He carefully avoids using the same word or term in more than one sense . . .
In brief, he always expresses the same idea in the same way and always expresses different
ideas differently.19

That modal forms familiar in the general language should be called

upon for the task of expressing deontic modality in legislation in the prin-
cipled and unambiguous fashion mandated by the Golden Rule seems to
18 See Asprey (1992: 79) and Tiersma (1999: 207), both of whom underscore the famili-
arity of must. However, as frequency affects familiarity, one is prompted to ask whether
must would feel familiar any longer if it were used as frequently as shall. M. Asprey,
“Shall Must Go”, Scribes Journal of Legal Writing 3/79 (1992), 79–83. P. Tiersma, Legal
Language (Chicago: University of Chicago Press, 1999).
19 Dickerson The Fundamentals of Legal Drafting §2.3.1, at 15–16 (2nd edn. 1986)
cited in B. Garner (1998: 940). R. Dickerson, “Choosing Between Shall and Must in Legal
Drafting”, Scribes Journal of Legal Writing 1/144 (1990), 144–147.
 LEGISLATIVE LANGUAGE IN THE EU 367

be a sad twist of historical linguistic fate. Contrasting general and legal

usage, Bowers remarks “The high ambiguity and resultant indirectness
that make these auxiliary modal verbs so appropriate for polite expres-
sion, render them quite problematic for public and plain purposes such as
those of an Act”.20 These pragmatic difficulties stem from the fact that the
modals form a closed system, in which their meanings are “reciprocally
defining: it is less easy to state the meaning of any individual item that to
define it in relation to the rest of the system”.21 In other words, modals are
context dependent; the legislator must provide additional clues to ensure
the correct reading.22 Interestingly for the multilingual EU, this liability
seems to be the case in other languages as well, e.g., German.23
The remainder of the section illustrates four specific cases of discrep-
ancy in the use of the modals shall, may and must vis-à-vis the professional
ethos embodied in the Golden Rule of Drafting. All can be termed
‘use as abuse’ in that attested use, at least as described by the linguist,
points to deviation from general usage or stated legal norm. Interestingly,
none of the cases has its origin in a confusion of epistemic and deontic
senses.

3.1. Shall v. zero

The question here is whether any deontic illocutionary force is being
imparted to the proposition in question.24 The relevant drafting guidelines
for shall can be found in Thornton:
(a) Shall may be temporal and denote future time, or
(b) it may be modal denoting obligation (in traditional grammar referred to as the impera-
tive mood).
When used accurately, otherwise than in a temporal sense, “shall” should only be used
when an obligation is to be imposed on a person.

20 F. Bowers, Linguistic Aspects of Legislative Expression (Vancouver: University of

British Columbia Press, 1989), 24.
21 R. Quirk, S. Greenbaum, G. Leech and J. Svartvik, A Grammar of Contemporary
English (London: Longman, 1972), 46.
22 M. Asprey, “Shall Must Go”, Scribes Journal of Legal Writing 3/79 (1992), 79–83.
Here p. 82.
23 D. Heller, “Ist Modalität normierbar? Zum Gebrauch der Modalverben in DIN-
Normen”, in Modality in Specialized Texts, eds. M. Gotti and M. Dossena (Bern: Peter
Lang, 2001), 213–238. Here p. 216.
24 Technically, this would encompass interpretations of may as mere possibility; only
shall is discussed here.
368 RICHARD FOLEY

Interestingly, this description distinguishes non-modal (a) and modal

(b) uses, although (a) is typically associated with general usage only.25
Trosborg and Bowers qualify both as follows:
first, as the law is always speaking, if shall is interpreted as a future tense it creates
perpetual futurity, meaning the provision will never come into force;
second, “all cases where shall is propositional and non-agentive in fact weaken the super-
ordinate force of the Act by suggesting that there is yet a further step to be taken before the
enacted clause becomes reality.26

Analyses for EULEG along the lines of those conducted by Trosborg

for British statutes27 indicate that only some 45% of the instances of
shall occur in contexts with a recoverable human agent. In EULEG,
the most widespread spurious use of shall is found in definitions, e.g.,
“for the purpose of this Regulation ‘participating Member States’ shall
mean Belgium, Germany . . .” Drafting guidelines state categorically that
definitions are to be formulated using the present tense.28
Whereas the use of shall in definitions can be considered a formulaic
‘bad habit’, instances such as the following show a deeper carelessness:
(11) If it sees fit, the authority shall seek the views of data subjects or their representative.

Shall has no deontic force here. It clearly cannot impose an obligation or

confer permission, as the triggering condition – “seeing fit” – is up to the
discretion of the agent. On balance, semantically void, stylistic uses of
shall pose a risk to transparency in that the reader may construe them as
imposing obligation where none is intended.

3.2. Shall/must v. may

The issue here, determining whether the legislative intent is obligation or
permission, has come to light in litigation in the United States; the analysis
of shall in EULEG above suggests that EU legislation is no more disci-
plined in this regard. The following entry from Black’s Law Dictionary
establishes the norm:
As used in statutes, contracts, or the like, this word [shall] is generally imperative or
mandatory. In common or ordinary parlance, and its ordinary signification, the term “shall”
25 D. Crystal and D. Davy, Investigating English Style (London: Longman, 1969), 206–
207.
26 F. Bowers, Linguistic Aspects of Legislative Expression (Vancouver: University of
British Columbia Press, 1989), 34. A. Trosborg, Rhetorical Strategies in Legal Language
(Tübingen: Gunter Narr Verlag, 1997), 136.
27 A. Trosborg, Rhetorical Strategies in Legal Language (Tübingen: Gunter Narr Verlag,
1997), 105.
28 R. Dick, Legal Drafting in Plain Language (Toronto: Carswell, 1995), 94.
 LEGISLATIVE LANGUAGE IN THE EU 369

is a word of command, and one which has always or which must be given a compulsory
meaning; as denoting obligation.

The entry continues:

. . . But it [shall] may be construed as merely permissive or directory (as equivalent to
“may”), to carry out the legislative intention and in cases where no right or benefit to any
one depends on its being taken in the imperative sense, and where no public or private right
is impaired by its interpretation in the other sense.

The entry for must shows that it is every bit as ambiguous as shall vis-à-vis
may:
This word [must], like the word shall, is primarily of mandatory effect and in that sense
is used in antithesis to may. But this meaning of the word is not the only one, and it is
often used in a merely directory sense, and consequently is a synonym for the word “may”
not only in the permissive sense of that word but also in the mandatory sense which it
sometimes has.

Clearly, the liability is greatest here for the lay reader, who must
have the financial wherewithal to resort to litigation to clarify any doubts
regarding the legislative intent.

3.3. Shall v. must

The third issue concerns the degrees of obligation that need to be distin-
guished in legislation. Some authorities would distinguish shall for an
obligation imposed on a human agent with legal consequences for non-
compliance (12) and must for conditions precedent or subsequent (13):
(12) Upon your return, you shall report to the Agency your activities while abroad. . . .
(13) The report must include details of your activities while abroad.29

Others30 do not consider this a relevant legal distinction, and would opt
for must exclusively, citing its familiarity in the general language. As (9)
in Table I shows, must occurs in EULEG with human agents. If the legal
distinction at issue here is disputed within the profession, it is arguably
arcane to the lay reader, and even consistent use of the modals to convey it
would contribute nothing to his or her understanding of the text.

29 R. Dickerson, “Choosing Between Shall and Must in Legal Drafting”, Scribes Journal
of Legal Writing 1/144 (1990), 144–147. Here p. 146.
30 M. Asprey, “Shall Must Go”, Scribes Journal of Legal Writing 3/79 (1992), 79–83.
J. Kimble, “The Many Misuses of ‘Shall’ ”, Scribes Journal of Legal Writing 3/61 (1992),
65–75.
370 RICHARD FOLEY

3.4. The meaning of ‘meaning’

The fourth issue is interesting in that it reveals notions of meaning within
the legal profession that are untenable in modern linguistics. Some lawyers
would restrict the use of shall to instances where the human agent is the
grammatical subject of the sentence; thus only the first of the following
senses of shall is deemed acceptable according to the American Rules:31
(14) the court . . . shall enter an order for the relief prayed for . . .
(15) Service shall be made on the parties.

Garner objects to shall in (15) on the grounds that a duty is being

imposed on an abstract thing, e.g., service. However, the choice of passive
voice is a stylistic consideration, not a lexico-semantic or legally motivated
one. Indeed, an agent is readily identifiable: ‘serve notice on’ implies an
action on the part of a bailiff at the request of the court. The rule confounds
syntactic and semantic criteria and yields two “senses” where in linguistic
terms there is only one. Here, the linguist is well appointed to temper the
legislator’s view of grammar and meaning – and the relation between the
two.
On balance, it is ironic that shall, detached as it is from the general
language, should become or remain so unwieldy a linguistic tool in the
hands of the legislator. In principle, with no tensions or ambiguous read-
ings emanating from general use, the legislator has had free reign to endow
it with the rigor and precision in language mandated by the profession in
general and the Golden Rule of Drafting in particular.
The section to follow will sketch a number of mechanisms either in
place in or available to the EU context that might rectify the divergent
interests suggested above.

4. M EDIATING M ECHANISMS

4.1. Plain language

At its best, Plain Language holds out the promise of a new literacy,
embodied in a process of translation32 that would produce a single text
melding the purposes of the legislator and lay audience. In the case of the
modals, drafters would presumably identify the deontic sense intended and
express it unambiguously and consistently with must or may. Yet, many of
the accounts of Plain Language seem bottom-up, focusing on simplifica-
tion or correction of legal language. The style sheets to be found on the
31 B. Garner, A Dictionary of Modern Legal Usage (Oxford: OUP, 1998), 940.
32 P. Tiersma, Legal Language (Chicago: University of Chicago Press, 1999), 222–227.
 LEGISLATIVE LANGUAGE IN THE EU 371

Web pages and the drafting guides written in this vein33 do a disservice
to the ultimate aim of transparency in that they assume a traditional legal
text that is then corrected. The myriad do’s and don’ts, such as “Use by
not by means of and carry out in preference to implement, seem to cry
out for implementation as a legal spelling checker34 and clearly sustain
an untenably superficial notion of readability. For example, in the present
case, an application of this mentality would mechanically replace shall
with must, where a finer-grained legal, semantic and stylistic analysis is
called for to determine whether a modal is appropriate in the first place.

4.2. Litigation
Unique to legislation as a form of writing is that it forms part of a cycle
of communication which is complete and explicit. Parliament expresses its
legislative intent in a written document addressed to all citizens within a
jurisdiction, and courts are obliged to provide interpretation in cases where
the intent is apparently contravened or disputed.35
Numerous cases are on record in the United States which involve
disputes over the modals shall, may and must. After reviewing over one
hundred cases dealing with shall, Kimble concluded: “In summary, I’m
afraid that shall has lost its modal meaning - for drafters and for courts.
Drafters use it mindlessly. Courts read it any which way.”36 One case even
cites the following passage as a cogent guideline for interpretation:

The word may is construed to mean shall whenever the rights of the public or third persons
depend upon the exercise of the power or performance of the duty to which it refers. And
so, on the other hand, the word shall may be held to be merely directory, when no advantage
is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to
the individual, by giving it that construction. But, if any right to anyone depends upon
giving the word an imperative construction, the presumption is that the word was used in
reference to such right or benefit. But, when no right or benefit to anyone depends upon
the imperative use of the word, it may be held to be directory merely.37

While it is heartening that the system works in that courts can be called
upon to determine the meanings of shall, may and must, litigation is clearly
a last and undesirable resort. It is worrisome that the modals should prove
33 See, e.g., the lists in Dick (1995: 154–159) and http://plainlanguage.gov/library/
smpl1.html. R. Dick, Legal Drafting in Plain Language (Toronto: Carswell, 1995).
34 P. Tiersma, Legal Language (Chicago: University of Chicago Press, 1999), 225.
35 A. Trosborg, Rhetorical Strategies in Legal Language (Tübingen: Gunter Narr Verlag,
1997), 28.
36 J. Kimble, “The Many Misuses of ‘Shall’ ”. Scribes Journal of Legal Writing 3/61
(1992), 65–75. Here p. 67.
37 Vale v. Messenger, 184, p. 558 Iowa, cited in 236 Iowa 669.
372 RICHARD FOLEY

inadequate to what, to the linguist, seem to be straightforward tasks of

expressing obligation imposed on or permission/right conferred upon a
human agent.

4.3. Translation
While the European Court of Justice has not as yet been called upon to
interpret the meaning of a modal verb in legislation, it has a nearly equiva-
lent resource in its translation service, where lawyer-linguists perform that
task for every modal in every piece of legislation drafted. Two transla-
tion processes must be distinguished. Ideally, translators deverbalize the
original message in the source text, extract the illocutionary force38 – if
any – accompanying a proposition and render it in their native language.
Accordingly, they would filter out spurious, stylistic cases of shall, such
as those frequently found in definitions. Not uncommonly, however, trans-
lators rely excessively on the surface structure. Evidence for translationese
has been substantiated by Schmied and Schäffler39 in translation corpora
of English and Norwegian and Trosborg40 acknowledges the phenomenon
specifically with regard to shall in legal language. Beeth and Fraser41
have even identified institutional pressures for perpetuating inadequate
translations.
One of the dangers of many of the translating tools like the Translator’s Workbench (TWB)
is that they provide the translator with ready-made segments of text in the target language
(lifted from earlier documents), making it much easier to stay on the surface of a document.
And yet in our hearts we know that what was an adequate translation for the document from
which the segment originated is unlikely to be as adequate for the document we have before
us now.

In (16) below, the choice of skall in Swedish can be seen as trans-

lationese. Presumably working from an English original, the translator
has opted for the English cognate (and generally acceptable equivalent)
of shall; deverbalizing would have shown that obligation was logically
impossible (see (11)). Finnish opts for modal ‘can/may’, usage which is
consistent with the general language and need not be construed deonti-
cally; French and German use the simple present.
38 R. Bell, Translation and Translating (London: Longman, 1991), 56.
39 J. Schmied and H. Schäffler, “Approaching Translationese Through Parallel and
Translation Corpora”, in Synchronic Corpus Linguistics, eds. C. Percy, C. Meyer and I.
Lancashire (Amsterdam: Rodopi, 1996), 41–55. Here p. 48.
40 A. Trosborg, Rhetorical Strategies in Legal Language (Tübingen: Gunter Narr Verlag,
1997), 159.
41 H. Beeth and B. Fraser, “The Hidden Life of Translators”, Translation and Termi-
nology 2 (1999), 76–96. Here p. 76.
 LEGISLATIVE LANGUAGE IN THE EU 373

(16) If it sees fit, the authority shall seek the views of data subjects or their representative.42

fi se voi hankkia [it can/may obtain the views]

sv skall den inhämta synpunkter [it shall obtain . . .]
fr recueille [it obtains . . .]
de holt ein [it obtains . . .]

While translations hold out promise as a means to disambiguate source

texts, there are political obstacles in the EU in that it is not possible to
establish the source and target text: all are equally authentic and ‘source’
would imply an untoward political primacy. The principal limitation in the
case of translation, however, is that any disambiguation it might afford
becomes the privilege of the bi- or multilingual actor, a situation that
clearly runs counter to the very purpose of multilingualism in the Union.

4.4. Terminology
In order to further the aim of machine translation in the EU, attempts
have been made to establish a Euroversal framework of modal senses.
Svendsen43 identifies the deontic senses of permission, compulsion and
obligation, the idea being that one form and one form only should be
assigned to each for each language. Shall (or must) certainly would be at
home in “deontic obligation” and may in “deontic permission”. This would
amount to termification of the modals – usually dismissed by terminolo-
gists as ‘grammatical words’44 – and establishing a single form for a
single meaning in each language, precisely in keeping the Golden Rule
of Drafting.

5. C ONCLUSION

The foregoing discussion has suggested a number of shortcomings in

language, its users, and potential governing mechanisms alike. Any
putative tooling of the deontic modals to fit the needs of legislative
language would certainly seem fraught with obstacles. In strictly termino-
logical terms, abandoning the modals in favor of lexical equivalents such
as ‘is obligated to’ and ‘is entitled to’ would overcome the problems stem-
ming from their seemingly inherent ambiguity; were this strategy adopted,
42 Article 27(2) of Directive 95/46/EC.
43 U. Svendsen, “On the Translation of Modality in an MT-System Part I”, Le Langage
et l’Homme 25/4 (1991), 273–280. Here p. 276.
44 See http://www.computing.surrey.ac.uk/ai/pointer/report/section1.html under “Gram-
mar”
374 RICHARD FOLEY

legislative language – at least at the corpus level – would come to share

even fewer features with general usage. Continuing with the modals and
continuing to rein them in incrementally would require putting a compre-
hensive mechanism in place for establishing (and stating) legislative intent,
assigning a single form to the meaning discerned, and providing contextual
support in the legislative instrument; however, the first and third steps are
solely the province of the legal profession, whose record in this regard,
albeit in other jurisdictions, reveals a penchant for distinctions at variance
with the interest of the lay reader. However, even the linguist’s contribu-
tion in assigning form to meaning, e.g., the notion of ‘recoverable human
agent’, is problematic;45 almost all activity – even ‘causing to contain’ in
(13) – presupposes a human actant. This is the only distinction sustaining
shall in some quarters, which, distinctive of the legal language and thus
exclusionary of the lay reader, has taken on a life of its own – its ‘traditional
promiscuity’ as Garner46 has termed it.
Advocacy of the lay reader’s interest – transparency – also seems
thwarted by variant conceptions of text and meaning. The bottom-up
approach – do’s and don’ts, readability indices, sentence lengths – is
arguably more accessible to the lay reader; more comprehensive literacies
clearly require collaboration between the legal and linguistic professions.
Where the considerations presented above clearly have the potential to
divide actors and thus undermine interests – with language use becoming
abuse – this need not be the case in the EU. The requisite array of insti-
tutions and institutional mechanisms is there; this crucible need only be
properly fired and tended to effect a workable melding of the diverse
interests it must contain.

Language Center
University of Lapland
Box 122, 96101 Rovaniemi
Finland
E-mail: richard.foley@urova.fi

45 R. Foley, Going Out in Style? Shall in EU Legal English (Lancaster: UCREL

Technical Papers Volume 13, 2001), 185–195. Here p. 192.
46 B. Garner, A Dictionary of Modern Legal Usage (Oxford, 1998).