Saturday, December 12, 2015

We Should Recognize Legal Legerdemain When We See It

According to Politico, the whole Paris Climate Treaty almost got hung up on parsing the difference between the words "shall" and "should."  Apparently, US lawyers threw a hissy fit over contract language invoking what America shall do vs. what America should do (full disclosure, I am no stranger to litigious battles over the meaning of single words in the context of intellectual property disputes). But, my interest is deeper: According to Politico, "shall" has a binding, obligatory legal meaning that "should" lacks (they're fighting over modals!). "Shall" would have meant getting the US Senate involved; "should" just means namby-pamby-only-while-Obama-is-in-office.  "America shall do this" was too serious for Kerry et al. and they insisted that it be changed to "America should do this."  In other words, '"should" is "shall-lite."  I call bullshit on that.

Consult any American or British lexicon and you learn that "should" carries the moral imperative that "shall" lacks.* Shall is more or less just a modal verb indicating future action.

Kerry et al. just morally obliged us to future actions.
* I'm still confused over whether "should" is the subjunctive form of "shall."  Any thoughts?

[added]  More on "should" here. And Victoria responded to me on Twitter!

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