[CCWG-ACCT] Request for Clarification on Threshold Issue

Phil Corwin psc at vlaw-dc.com
Sun Feb 28 20:14:41 UTC 2016

"'Shall' is very commonly used in legislation in the third person to 
imply mandatoriness."


 In four decades of U.S.  legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.

Philip S. Corwin, Founding Principal
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Nigel Roberts
Sent: Sunday, February 28, 2016 3:01 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue

I don't agree with your example. however valid the rest of your comment.

Traditionally, the auxilary "shall" is used for the future tense with 
the first-person pronouns I and We.   "Will" is used with the 
first-person (again, I refer to traditional usage) to express determination not merely futurity.

The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.

So both of your examples are right, not just one; and they bear subtly different meanings . . . .

"If you come late I WILL NOT wait for you"

means :-

"I have no desire to wait for you if you are late. I am determined in 
that view"  (the conclusion that "you should not expect to see me there" 
is merely implicit)

However  . . .

"If you come late I SHALL NOT wait for you" means literally and 
EXPLICITLY simply that :-

"Do not expect to see me there if you arrive late".

This form says nothing about my feelings or desires explicitly (though 
you might imply this, it is not certain at all;  and my reasons for not 
being there if your are late may be external unrelated to my desires, 
wishes or intentions.).

'Shall' is very commonly used in legislation in the third person to 
imply mandatoriness.


(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)

> Example
> If you come late I *will*not wait for you
> It is never said
> If you come late I *shal*l not wait for you
> This is an important basic and fundamental issue to be respected.
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