Plain Language Translations of American Divorce Law 173Shall also occurs in the language of laws and directives: All visitors shall
observe posted regulations. Most educated native users of American
English do not follow the textbook rule in making a choice between shall
and will.In legal plain language translations, however, the term “shall” is most
often translated to “must”. The sense of “shall” is that of direction. One
might speculate that “shall” may have originated as a royal command
since the earliest English statutes were often linked to the English kings or
queens who first agreed with their advisers that such statutes would
become the law of the land.
“Shall” has become problematic for American non-specialists when
reading legal documents because they often interpret “shall” as more of a
non-mandatory request. This may be because the use of “shall” has
declined so that it is most often heard in sentences such as “Shall we go?”
and is intended to convey that some amount of consent is required from
the listener for the action to commence. In fact, the problem has become
so bad that over the years the courts have made several rulings that the
term “shall” when used in a statute or court order means “must” and that
the term “must” can be substituted for it, even though the original statute
may still use the term “shall”. By the time that plain language translations
began, the substitution of “must” was already legally determined.
Prototype and radial extension issues
One serious aspect of legal terminology is the problem of definitional
limits. Some legal terms are normally thought to cover sets of situations
that have specific limits. The situation is either within the set or not, and
from that determination it can be decided whether this rule or another rule
should apply. This Aristotelian notion of terms as defined by necessary
and sufficient conditions has great difficulty when applied in human
conditions wherein seemingly unrelated variables can alter the application
of these rules.
H.L.A. Hart’s famous defense of legal positivism includes use of the
term “problems of the penumbra” as “problems which arise outside the
hard core of standard instances or settled meaning.” (Hart 1958: 607)
Lawyers routinely talk about “line drawing cases” as if the application of
rules could be conducted by a series of Venn diagrams. These issues show
up in plain language translations. Here is an example.
The legal term “residence” normally means the place where the litigant
or other party lives. “Residence” can refer to the particular street address,