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73Модальность в юридическом дискурсе: модальные глаголы MUST, CAN, MAY, WILL and SHALL между обязательством и разрешением
Фамина Наталия Валентиновна,
кандидат филологических наук, доцент, кафедра «Иностранные языки», Московский автомобильно-дорожный государственный технический университет E-mail: faminanatalia@gmail.com
Осминкин Антон Игоревич,
докторант университета Новая Сорбонна Париж 3, преподаватель юридического русского и английского языков в ИЗИТ (Париж)
E-mail: aosminkin8425@gmail.com
В данной статье мы намерены исследовать выражение модальности в юридическом дискурсе, анализируя наиболее специфические значения модальных вспомогательных глаголов, таких, как SHALL, WILL, MUST, MAY и CAN. Следует отметить, что преобладающий тип модальности, встречающийся в юридических документах, связан с деонтической модальностью, то есть с обязанностью и разрешением, выраженными вышеупомянутыми модальными формами. Более того, мы, в конечном итоге, покажем, как новые тенденции, инициированные развитием английского, в настоящее время влияют на использование модальных глаголов в юридическом дискурсе. Кроме того, основываясь на наших предыдущих исследованиях модальности в различных контекстах, мы более подробно рассмотрим дивергенцию и конвергенцию значений указанных модальностей, используя подход анализа дискурса.
Ключевые слова: модальность текста, юридический дискурс, конвергенция и дивергенция модальных значений, настоящее время.
Introduction
In our previous works, we mentioned that, while analyzing modality in English, both Russian and Western linguists consider examples with modal auxiliaries taken from various contextual environments. However, scholars do not specifically focus on contexts in which modals exhibit specific meanings. We decided to retreat from the routine practice of studying modality for two reasons. Firstly, there are still not many works dedicated to the analysis of modality in a specialized type of discourse. Secondly, such an approach based on comparing meanings of modal auxiliaries that occur in different contexts allows one to observe regular semantic variations that may result in revealing the Predominant Modality Type (termed as Pivot Modality in our previous papers) specific for a particular type of discourse.
Therefore, in this paper, following our previous publications, we intend to analyze modality as expressed by modal auxiliaries in legal discourse. Moreover, this type of contextual environment has been reported to possess a very high frequency of deontic meaning. It is the kind of discourse in which the deontic SHALL can be found.
In our earlier papers, we have considered predominant meanings of modal auxiliaries in dialogues (TV series scripts) and samples of scientific texts. In this study, we intend to compare the described semantic overtones with those found in legal discourse and reveal more clearly the linguistic phenomenon of convergence and divergence of modal meanings characteristic for a particular language genre.
Data and Tools of Analysis
The corpus of legal texts used for our analysis is comprised of our own stock (collected as a legal translator) and the samples taken from the electronic database of legal documents Onecle (https://www.onecle.com). In this study, we have decided to focus on commercial contracts and agreements between companies that are also known as B2B contracts. This choice of language samples enables us to observe and provide representative findings based on homogenous texts having almost identical contextual properties. First, we collected our data and saved it in the Word format. Then, we transferred the data into the Excel format to produce statistics.
Following our earlier papers, we will use paraphrase as the main tool for linguistic analysis to reveal semantic variations of SHALL, WILL, MUST, MAY, and CAN in the chosen contexts. We will also use periphrastic changes in order to confirm and reinforce certain observations. Besides, we will use a number of elements from the 'Theory of Enunciative Operations' (herein-
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after referred to as TEO), laid down by the French linguist Antoine Culioli and his followers.
Legal Discourse
Legal discourse belongs to a formal type of genre used in legal and administrative public areas. Generally, legal discourse implies an official register. This specific context represents various types of documents, such as international treaties, government acts and state regulations, charters, legal contracts and agreements, legal opinions etc. Despite the differences in content and variety, there are two main features that distinguish these documents 1) precision that excludes undesirable interpretations and ambiguity, and 2) language standard. Language standard implies the use of Legalese, a specific style of legal writing.
In order to understand the prevailing meanings of the modal auxiliaries SHALL, WILL, MUST, MAY, and CAN in legal discourse, it is necessary to describe the main features of legal English.
Vocabulary
One can mark wide usage of special vocabulary: archaic (e.g. hereto, therein etc.) and latin words (mutatis mutandis etc.), old-fashioned words (aforesaidetc.), and legal jargon ('without prejudice to'), the use of synonymic pairs ('terms and conditions'), or triples ('build, erect or construct'), or pairs of words with a reciprocal relationship ('lessor/lessee' etc.). Very often in this professional environment words acquire special meanings ('the judge determined facts of the case' where 'determined' means 'decided); and capital letters are used to signal important or defined terms (' the terms of the Lease'...).
Syntax
• Types of utterances
Our study reveals that declarative or negative sentences constitute predominant type of utterances used in the said contextual environment (as opposed to interrogative, imperative or exclamatory sentences). Declarative and negative statements are used to describe and enforce legal provisions as in the following examples:
(1) For all parts and products specified on this Purchase Order, the Company reserves the right to inspect/verify all products or services upon receipt to the revision identified on the Purchase Order.
• Types of constructions
Passive constructions prevail in impersonal sentences:
(2) The application for stay of execution is denied.
We also note the use of lengthy and complex sentences with little punctuation. Besides, one can find examples of inverted word order like 'title absolute'.
• Morpho-syntactic features
Our data shows that the referent of the sentence subject is always expressed by the third person (singular/plural) as in the following example:
(3) Vendor shall defend, indemnify and hold the Company harmless from and against any and all claims howsoever arising, whether sounding in tort (including personal injury or any property damage), contract, warranty, or otherwise, and all reasonable expenses, including without limitation attorney's fees and court costs, arising from or related to (i) any breach or failure of the covenants, warranties, representations, and commitments of Vendor contained herein.
The first person (singular '/') is found only in Affidavit, a very specific kind of legal document. Its first page represents a written testimony of a person as in the following example:
(4) I HEREBY make this solemn declaration and oath conscientiously and believing same to be true, and by virtue of the Evidence Act, do HEREBY DECLARE that the company is validly incorporated.
Moreover, it should be noted that the syntactic subject of the sentence has a specific referent, usually expressed by a collective noun [2].
• Temporality
In our corpus of legal documents we mark regular use of three grammatical tenses: Present Simple (both active and passive), Present Perfect (both active and passive) and, less frequently, Past Simple (both active and passive) like in the following examples:
(5) Where the directors delegate their powers to a committee of directors, they remain responsible for the exercise of that power by the committee.
(6) The Company is under no obligation to refund any money to the Shareholder whose Shares have been cancelled pursuant to Sub-Regulation 5.4.
(7) The Buyer pays for the purchase after the Seller has fulfilled the shipping conditions within the term specified herein.
(8) The Contractor transferred all the required documents to the Client.
The Present Perfect Tense is used to state consequences resulting from legal actions whereas the Past Simple Tense provides the reader with a fact, or an event or an action that occurred prior to the moment of speaking. The case of the Present Simple Tense is the most interesting. In legal contexts this tense is used 1) to state and present legal information and provisions like in 'This Agreement is signed/made' or 'All the prices are indicated in the Appendix hereto'.etc.; 2) to express obligations. Later we will return to this meaning of the Present Simple Tense.
• Author's level of authority towards the sentence
subject in legal context
From a discourse analysis perspective, we can see that there is a hierarchical relationship between the implicit Author that imposes legal provisions and the subject of a sentence. It should be noted that the implicit Author operates as an abstract and non-identifiable deontic source. In this case, the said Author represents the Law in the term's broadest sense.
Finally, based on our findings, we will try to establish compositional patterns for the chosen specialized context, termed by J.-P. Broncard as 'discursive planning' ('planification discursive'). It is easy to see that each compositional pattern represents a sequence of
textual segments and it will be shown below that each segment performs its own content function.
Thus, the EXPOSITION segment provides general information and provisions as in the following extract:
(9) [...] Limited Liability Company incorporated under the laws of the Russian Federation, represented by. ., the General Director, acting by virtue of the Articles of Association, hereinafter referred to as the 'Executor', on the one hand, and [...] Business Company incorporated under the laws of the British Virgin Islands, acting though its Branch Office in the city of Moscow, hereinafter referred to as the 'Client'.
Then one can clearly single out another segment which can be termed as the IMPOSITION. It is in this part of a legal text that obligations and permissions are stated. It is easy to see that the granting of permission is not implicitly far from the imposition of obligations. As I. Richard notes, the deontic MAY is a trace of authority and can be perceived and interpreted as an imperative. In this respect, we recall F. Visser, cited by I. Richard, who compares MAY with SHALL: 'the words shall and may in general acts of parliament... are to be construed imperatively (2008: 176-177). However, we can add that his comment is pertinent not only to the laws of Parliament but also to other legal documents, especially those within the scope of our analysis.
(10) This Agreement shall remain valid until the Parties have fully fulfilled their mutual obligations except for Article 8 hereof
(11) The Client may use, copy and distribute results of the Services provided by the Consultant here-under for his own purposes only.
It should be noted that the statements in Present Simple can be found both in the EXPOSITION and the IMPOSITION segments. If Present Simple is used to state general provisions and information, it will mark the EXPOSITION segment, but, if used with the implicit deontic meaning, this tense will express the IMPOSITION segment.
Possibility or probability can be traced to a third segment type in which semantic overtones imply all that is possible or probable (whether positive, negative or neutral circumstances). In general, this segment type is less typical for legal documents. It is usually expressed by epistemic MAY and WILL, and the tentative forms of MAY, CAN and WILL (MIGHT, COULD, or WOULD) as in the following examples:
(12) A 'Force Majeure Event' means an event that is beyond the reasonable control of, or unforeseeable or even if foreseeable but unavoidable by the Parties, and would prevent, affect or delay the performance by either Party of its respective obligations hereunder, including without limitation, a governmental act, natural disaster, war, hacker attack or any other similar event.
(13) Confidential Information includes combinations of information, some of whose individual elements may be known but which, in the aggregate, derive actual or potential economic value by reason of not being known to others who could benefit from them.
(14) As high-quality products, Upsolar will build a superior image of "made by Jinko". The year of 2010 is the first year in sales of U.S. & Canada, Upsolar might give some discounts when selling the modules for the exploiting markets reason.
One can reasonably define this segment as the 'ESTIMATION' and the 'ANTICIPATION' segment.
It should also be noted that the segments may follow each other or may be distributed throughout the text in accordance with its content.
To sum up, the above observations serve to describe the contextual landscape of legal discourse, revealing its most specific features.
Meanings of SHALL, WILL, MUST, MAY, and CAN in Legal Discourse
In this section, we will study the principal meanings of the said modal auxiliaries which occur most frequently in legal documents.
Modal Auxiliary MAY
We will start by analyzing semantic overtones of MAY that is noticeably more frequent in legal context.
Deontic Permission
In a legal context, MAY is widely used to express deontic permission as in the following examples:
(15) The Company may by Resolution of Directors redeem, purchase or otherwise acquire all or any of the Shares in the Company subject to regulation 3 of the Articles.
(16) Either Party shall keep confidential of, and without the written consent of the other Party may not disclose, give or transfer to any third party, any confidential data and information.
(17) A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition, in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.
(18) Shares may be transferred by a written instrument of transfer signed by the transferor and containing the name and address of the transferee, which shall be sent to the Company for registration.
As seen from the above examples, deontic MAY occurs in different types of syntactic structures with the expressly determined agent as in (15) or (17) or with an undetermined agent as in (18). Moreover, in the above examples MAY is always used in declarative or, less frequently, in negative statements. Besides, in (15) and (17) we have the impression that the utterances imply the agentivity of the sentence subject when used in combination with the verbs 'purchase', 'disclose' etc. In such cases, the syntactic subject combined with MAY usually refers to a collective noun. It generally designates a set of animate or inanimate referents. In (15) 'the Company refers to the managers who run this company. 'In (17), a 'Party implies a legal enterprise and its employees. In these examples,
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'the Company or a 'Party represent real agents that are authorized to perform the actions implied by the deontic permission coming from the deontic source. We can define the said agents as deontic agents. In addition, our analysis shows that the deontic MAY occurs only in the utterances in which the syntactic subject refers to the third person (singular/plural). (18) represents the case in which a real agent, i.e. a deontic agent, is situated out of the utterance. Such an agent implies any person (or persons) capable of transferring shares. In this case, the syntactic subject 'shares' operates as a deontic patient.
We found no interrogative structures containing deontic MAY in our corpus.
As shown earlier, the deontic MAY in dialogues expresses permission (in a particular situation, which implies a clearly identified speaker and co-speaker) as in 'May / come in?' In this case, the speaker appears to act as a deontic source, which grants permission. By contrast, the co-speaker asking the question 'May / come in?' represents a deontic agent. In order to make the speaker and the co-speaker manifest themselves, we can provide the following paraphrase of the original utterance May / come in? = Do you permit me to come in?
However, one can notice that in the above examples (15-18) the deontic source is neither personal nor explicit, unlike in 'May / come in?' In other words, it is generic because it can imply any referent. This can be confirmed by the following paraphrase of (15):
(15)' The Company is allowed by Resolution of Directors to redeem, purchase or otherwise acquire all or any of the Shares in the Company subject to regulation 3 of the Articles
In (15)' the paraphrase reveals that the deontic source of permission represents Law. Moreover, in (15)', as noted by I. Richard (2008: 175), the prepositional group 'by Resolution of Directors' imposes the authorized manner of performing actions. As I. Richard writes, such prepositional groups 'express the only authorized means/way excluding all others' (2008: 176) (Our translation, 2019). Thus, we are dealing with the imposition by the speaker of their authorization. The idea of imposing permission is confirmed by some linguists such as E. Gilbert, J. Coates, who see the similarities between obligation and permission and claim that 'granting permission has much in common with imposing obligation' (J. Coates, 1983: 87). L. Hermeren remarks that deontic MAY implies almost an order: 'May approaches a command in meaning through intervening condescension'. Sometimes it is difficult to define whether the value of MAY implies dynamic possibility or deontic permission. Such ambiguity can be traced in (18):
(19) A share may be issued for consideration in any form, including money, a promisory note or other written obligation to contribute money or property, res' al property, personal property (including goodwill and 5 know-how), services rendered or a contract for future ^ services.
° At first glance, one tends to think that MAY in the H above statement implies deontic permission proceed-
ing from the legal nature of the context in which it occurs. However, one can feel a trace of vagueness, i.e. some doubt [3]. As noticed by É. Gilbert: '...it is true that the border between the deontic and dynamic meanings of the modal [May] is sometimes rather vague and that the superficial markers do not always make it possible to decide in favor of one rather than the other. What this ambiguity shows is the importance of interpersonal relationships: they alone can favor one interpretation over the other (1987: 126) (Our translation, 2019). In this regard, J. Coates claims that the deontic and dynamic meanings represent the same root modality, as indicated by a circle with a blue nucleus in her own scheme below. This circle has a deontic center (in blue) and the dynamic periphery (fig. 1).
Fig. 1
In our previous papers, we tended to agree with those linguists who distinguish three main types of modality, i.e. epistemic, deontic, and dynamic, which sometimes overlap.
Thus, interpretations of MAY can fluctuate within the said range of meanings given the following prerequisites:
• the sentence subject is a deontic patient, not a deontic agent. According to E. Gilbert (1987: 129) while 'talking about the relation of subject-predicate as it is often done in the course of interpretation of deontic May,' (Our translation, 2019) this can provoke a certain ambiguity;
• use of passive constructions without a determined agent of action, which can lead to interpreting the meaning of MAY as a dynamic possibility;
• absence of interpersonal relation (identified speaker - co-speaker) as in 'May / come in?'
• generic nature of the deontic source, which refers to Law as an abstract authority.
In order to clearly represent such an ambiguity, we suggest the following paraphrase:
(18)'A share is allowed to be issued for consideration in any form, including money, a promisory note or other written obligation to contribute money or property, real property, personal property (including goodwill and know-how), services rendered or a contract for future services (deontic permission).
(18)''It is possible for a share to be issued for consideration in any form, including money, a promi-sory note or other written obligation to contribute money or property, real property, personal property (including goodwill and know-how), services rendered or a contract for future services (dynamic possibility).
This ambiguity may appear more evident if we compare (18) with the example provided by E. Gilbert. In
his example, taken from a dialogue, there is no doubt about the interpretation of MAY:
(20) You may sit a little nearer, but you must not wet my dress.
In (20) it is clear that we are dealing with a deontic MAY, which reveals an interpersonal relation. 'You' implies a deontic agent referring to the co-speaker. In this case, the deontic source is easily identifiable (it is the speaker). Then, we can paraphrase it in the following way: 'I (=the speaker) allow you (= the co-speaker) to sit a little nearer..'
In case of negation, like in (16), it is modality that is negated, not the predicate. It can be confirmed by the following paraphrase:
(17)'Either Party shall keep confidential of, and without the written consent of the other Party is not allowed to disclose, give or transfer to any third party, any confidential data and information.
In the above case, the speaker imposes the prohibition to disclose any confidential data or information on the sentence subject.
Dynamic Possibility
Our analysis reveals low frequency of dynamic MAY in legal texts. We have managed to find only a limited number of examples:
(21) "Master GDR" means any Regulation S Master GDR, the Rule 144A Master GDR and any temporary master GDR which may represent GDRs issued pursuant to Clause and being substantially in the form set out in Part A and B of Schedule 2, pursuant to Clause.
(22) A director may vote on any matter relating to such contract or any other arrangement notwithstanding that a director may be interested therein as well as on any matter relating to his appointment in any office or post in the Company.
Like the dynamic MAY in scientific discourse, the dynamic MAY in the legal context regularly occurs with the subject which referent represents a generic legal term, such as 'any temporary master GDR', 'a director etc.
Modal Auxiliary MUST
We have also discovered a very limited number of examples containing MUST as shown below:
(23) Once a company is insolvent, or in danger of becoming so, the directors must also take account of the creditors' interests.
(24) The following applies where Shares are jointly owned. if two or more of the joint owners are present in person or by proxy they must vote as one.
(25) The following applies where Shares are jointly owned. If two or more of the joint owners are present in person or by proxy they must vote as one.
(26) Confidential information must be defined as such in written form.
Similar to the deontic MAY, MUST can be found in different types of syntactic structures, both active and passive, with deontic agents or deontic patients.
Moreover, we observe MUST only in declarative statements. F. Palmer notes that it is not always easy to distinguish the meanings of the deontic and the dynamic MUST. However, it tends to be interpreted de-ontically in the legal context.
The meaning of MUST in the legal context is often defined as deontic necessity implying a generic deontic source, similar to the deontic MAY. Therefore, in order to reveal this meaning of MUST, we suggest the following paraphrase:
(23)'Once a company is insolvent, or in danger of becoming so, it is also mandatory for the directors to take account of the creditors' interests.
Later we will return to the deontic MUST when talking about the convergence and divergence of the mod-al's meanings.
Modal Auxiliary CAN Dynamic Possibility
Proceeding from our data, CAN is used less frequently in legal documents as compared to MAY. In all its occurrences CAN manifests dynamic meaning as shown in the examples below:
(27) If the parties cannot agree on whether the cost of altering, repairing, rebuilding or replacing does not exceed forty percent (40%) of the replacement cost of the Hotel, the matter shall be referred to an Expert.
(28) Without prejudice to the applicability of the preceding paragraph, the Concessionaire can establish the daily period during which its casinos and the activities therein will be open to the public.
(29) .information which can be proven to have been known to the Recipient prior to the date hereof and not obtained or derived in contravention of any confidentiality obligation in favor of GT Solar.
Similarly to MAY, these statements represent different types of syntactic structures, in which we can identify an explicit deontic agent like in (27) or (28) or a deontic patient like in (29). CAN implies the possibility of taking any action, which is confirmed by the following paraphrase:
(28)' .it is possible for the Concessionaire to establish the daily period during which its casinos and the activities therein will be open to the public
Moreover, if the statement with CAN contains negation like in (27), it is the modality that is negated, not the predicate. In this case, CAN implies lack of possibility and may be paraphrased as 'it is not possible forX to do .':
(27)'If it is not possible for the parties to agree on whether the cost of altering, repairing, rebuilding or replacing does not exceed forty percent (40%) of the replacement cost of the Hotel, the matter shall be referred to an Expert.
Modal Auxiliary WILL Deontic Injunction
It is worthy of note that, in legal texts, we have encountered a lot of examples containing WILL as in the following:
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(30) The Board of Directors will appoint among its members the Chairman.
(31) In particular, any litigation involving the Company, either as plaintiff or as defendant will be handled in the name of the Company by the Board of Directors or by a Director or any other person delegated for this purpose by the purpose by the Board of Directors.
(32) Punchlist Items means minor or insubstantial items of construction, decoration or installation which (in Operator's reasonable judgment) (i) do not preclude the operation of the Hotel in accordance with Ritz-Carlton Standards, (ii) will not interfere with the pre-commencement activities of Operator as described in Section 3.1, or (ii) will not affect any contractor's guaranty or warranty with regard to the quality standard for such item.
(33) The invoices will be submitted in accordance with the payment schedule.
(34) .the Company will forthwith pay (or reimburse the person making a valid payment of) all such stamp duties and other similar duties and taxes, including penalties and interest (if any) unless otherwise ordered by a court of competent jurisdiction in such proceedings.
At first glance, the meaning of WILL in the above statements resembles an order or instruction as interpreted by F. Palmer (1990: 142) for the following examples « ...and the president with head averted and profile turned to me said « Mrs Dodgson will walk on my right [.] Private Jones will report at 08.00 hrs. ». In these two examples, such an order or instruction is given in a particular situation in which the source and target of this instruction are explicitly identified. However, we may define WILL in the above-cited examples (30-34) as expressing a deontic injunction of a generic nature. In this case, the deontic source is generic, i.e. Law or legal procedures etc. The injunction that comes from the deontic source, i.e. from the speaker, is imposed on the grammatical subject of a sentence. This subject can be identified as a deontic agent in (30) or in (34).
It should be noted that the referent of the grammatical subject implies collective names 'The Board of Directors' or 'the Compan/. Sometimes, the grammatical subject does not necessarily correspond to the deontic patient. For instance, in (33) 'the invoices' appears to be the deontic patient of an injunction. The real deontic agent, who is to <submit invoices>, is situated out of the utterance. In other words, it stands for anyone concerned, who is responsible for the validation or non-validation of the predicate. Such predicate implies an action to be taken. In this case, WILL projects an action which is to be taken in future. In case of negation with the deontic WILL, it is the predicate that is negated, not the modality. It means the injunction not to do something. We suggest the following paraphrases to confirm the meaning of deontic WILL: 'X is instructed to do.' or 'it is instructed for X to do.' or 'X is instructed not to do.' or 'it is instructed for X not to do...':
(30') The Board of Directors is instructed to appoint among its members the Chairman.
(32') Punchlist Items means minor or insubstantial items of construction, decoration or installation for which (in Operator's reasonable judgment) [...] (ii) it is instructed not to interfere with the pre-commencement activities of Operator as described in Section 3.1, or (ii) will not affect any contractor's guaranty or warranty with regard to the quality standard for such item.
Modal Auxiliary SHALL
Legal genre is characterized by an overwhelming frequency of SHALL. Similar to the other modals considered, in all our examples given below, SHALL is related to a syntactic subject of the third person (singular/plural). É. Gilbert defines this use of SHALL as 'specific'. Based on her linguistic experience J. Coates also points out that the said use of SHALL is limited to the formal legal context.
Deontic Obligation
Most of our examples contain SHALL that manifests deontic obligation as shown below:
(35) The instrument appointing a proxy shall be produced at the place designated for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
(36) .all rights and obligations attaching to the Shares held by the other body corporate are suspended and shall not be exercised by the other body corporate.
(37) Purchaser shall expand a considerable amount of time, and credit and then money, and credit with respect to the purchase and operation of the Business.
(38) The Company shall issue registered shares only.
In the above samples SHALL is seen to appear in various constructions. In (35) and (36), SHALL is used in passive constructions, with the sentence subject representing the deontic patient. In this case, the real deontic agent is assumed to refer to anyone capable of taking action < produce the instrument >. Alternatively, the deontic agent can be expressly determined like in (37) and (38). In this case, the sentence subject operates as an explicit deontic agent. It is worthy of note that in syntax terms, the deontic SHALL is used only in declarative sentences, and less frequently in negatives. As is the case with the other modals, SHALL refers to a deontic source of a generic nature. Unlike the deontic WILL, SHALL also implies the non-autonomy of the deontic agent, i.e. the sentence subject. Despite its generic nature, the above deontic source determines and imposes obligations.
Moreover, if SHALL occurs in negative sentences, negation is expressed with the predicate, not the modal. In this case, it means the prohibition to do something. All the above observations on SHALL can be proved by the following paraphrase: 'X is obliged to do.', or 'it is obligatory for X to do ...', or 'X is obliged not to do.', or 'it is obligatory for X not to do . ', which shows the non-autonomy of the deontic agent:
(35') It is obligatory for the instrument appointing a proxy to be produced at the place designated
for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
(36)'It is obligatory for all rights [..] not to be exercised by the other body corporate.
Thus, we may conclude that in legal context WILL and SHALL tend to express deontic meaning of a generic nature. WILL implies generic injunction 'to do something (WILL) or not to do something' (WILL+NOT). By contrast, SHALL reveals the generic obligation 'to do something' (SHALL) or 'not to do something' (SHALL+NOT).
It is in legal discourse that we observe the main contrast in meaning between SHALL and WILL. This difference between the two modals plays the crucial role in expressing the right type of obligation. According to E. Gilbert, they seem to be semantically close to each other though they imply different shades of meanings due to a subtle difference between them.
Thus, the projection into the future marked by SHALL falls on the sentence subject that can be identified as a deontic agent or patient. The projection into the future marked by WILL implies that it is the deontic agent, either implicit or explicit, that is responsible for the validation or non-validation of the predicate.
This difference between SHALL and WILL can be illustrated in the following way (fig. 2).
Fig. 2
where S designates the sentence subject and the arrow points to the sentence predicate referring to the action to be taken.
In this connection, we can cite two classic fundamental examples in which the speaker coincides with the sentence subject:
(39) I will go to London
(40) I shall go to London.
In (39) we understand that it is the speaker's intention, identified as the sentence subject, to go to
London'. By contrast, SHALL in (40) should be interpreted as imposing such an intention on the speaker, identified as the sentence subject. SHALL can imply an order or any circumstance that forces the sentence subject (expressed by 'I') 'to go to London'.
Likewise, in the legal context we can identify the same shades of meanings between SHALL and WILL as shown in the previously cited examples:
(29) The Board of Directors will appoint among its members the Chairman.
(37) The Company shall issue registered shares only.
Both statements manifest a strong deontic implication. However, in (30) even such a strong deontic injunction implies some autonomy for the sentence subject 'The Board of Directors', whereas in (38) 'the Company entirely lacks any autonomy with SHALL.
Does Epistemic Modality Exist in Legal Discourse?
In the examples below taken from legal discourse, we could say that, at first glance, the modals MAY and WILL seem to be epistemic:
(41) All gaming licenses required for the operation of the gaming facility shall be held in the name of the operator of such gaming facility or as otherwise may be required by applicable law.
(42) Resolution of Directors means either a resolution consented to in writing by all directors or by all members of a committee of directors of the Company, as the case may be.
(43) The failure to appoint such single attorney will cause a suspension of all rights attached to such Share(s).
Nevertheless, it seems doubtful that these types of utterances imply the classical epistemic meaning of the modals. In order to confirm it, we can compare them with the borrowed excerpts taken from E. Gilbert, and J. Coates. Their examples provide the proper epistemic meanings of the modal auxiliaries:
(44) We may marry, I don't know.
(45) They'll probably be bored with me anyway.
(46) He must have been a monster. They say that girl didn't have one unbroken bone left in her body.
We can see that these utterances reveal all the fundamental particularities attributed by linguists to the epistemic modality: 1) the speaker who takes responsibility for the subjective judgement; 2) the occurrence of a particular situation in which the epistemic judgement is produced. Besides, the predicates <marry>, <be bored>, <be a monster> refer to the events preceding, coinciding or subsequent to the moment of speaking, accordingly. However, generally speaking, the epistemic modality is associated with subjectivity. It is difficult to apply this characteristic to examples (41), (42), (43). Let us remind that the notion 'epistemic' comes from the Greek word 'episteme' that means 'knowledge' derived from the verb 'epistamai' 'to know'. One may wonder if 'knowledge' should always be subjective. Could it be objective as well? F. Palmer was at a time one of those linguists who assumed that the epistemic modality could be objective by emphasizing that 'it is even possible for the speaker to disclaim his own responsibility for the judgment...' (1990: 51). In this connection, he defines such utterances as 'plain statements'.
In his article, J.-C. Verstraete shows the distinction between 'subjective and objective modality' as well as different approaches and criteria that linguists apply in order to define the objective or subjective nature of modality. For example, 'subjectivity-objectivity as speaker-relatedness', 'conditionally', 'performative nature of modality', 'tense', etc. The linguist though emphasizes that all of its divergent parameters reveal that the distinction between the subjective and objective modality is still unclear. On the other hand, J.-C. Verstraete notes that there is nevertheless a semantic characteristic more or less generally accepted by all the linguists, which concerns 'the presence or absence of (the) speaker's commitment' (2001: 1516).
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Thus, the more the speaker is presented in their utterance, the less objective seems the modality expressed in such an utterance. In addition, returning to F. Palmer, we do not even have 'to invent an occurrence of the objective epistemic modality,' as he writes. He provides an example cited from a weather forecast 'Most areas will have rain or thundery showers, but it will be mainly dry in Southern Scotland and much of Northern and Eastern England (Gilbert, 2001: 82). According to E. Gilbert, this utterance implies no subjective representation but 'a totally objective scientific representation, based on observations, measurements, statistics, etc.' Moreover, the linguist makes a comment on the epistemic meaning of MAY in scientific discourse, which appears to be pertinent to our case. He claims that 'one can wonder if it is always possible to speak about a non-certain modality for the occurrences of MAY having the meaning of possibility in scientific discourse' (Gilbert, 1987: 98).
F. Furmaniak and E. Pic also indicate that the contextual epistemic source may be undetermined. In other words, the said source represents the objective truth of the sentence proposition [4]. Regarding legal discourse, I. Richard defines the meaning of the epis-temic WILL as 'the future of prediction'. As for the epistemic MAY in the same context, she claims that it implies the eventuality, highlighting possible subsequent circumstances. Our analysis of the corpus shows that epistemic modality in legal documents is limited to a number of specific utterances with MAY and WILL. Besides, we can find them in the fixed forms as in the following examples:
(47) It shall perform the functions assigned to it by this Agreement and shall exercise such other functions as may be required for the implementation of this Agreement.
(48) The rules of procedure of the Conference of the Parties and the financial procedures applied under the Convention shall be applied mutatis mutandis under this Agreement, except as may be otherwise decided by consensus by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.
(49) Resolution of Directors means either a resolution consented to in writing by all directors or by all members of a committee of directors of the Company, as the case may be.
(50) The Company shall keep the following records at the office of its registered agent or at such other place or places, within or outside the British Virgin Islands, as the directors may determine.
We can see that such MAY and WILL do not express the classical subjective epistemic judgement but rather they refer to the cases stipulated by legal conditions. However, there are some occurrences of the classical epistemic modality as in the following exam° ple:
a (51) Except as the Administrative Agent may have g approved in advance, and save for the changes, ~ which shall result from the Permitted Voluntary Liqui-z dation, the ownership of the Group Members, ceas-
es to be as set out in the structure chart contained in Schedule 2 to the Sponsor's Undertaking Agreement.
In the above example, the speaker uses the explicit marker 'may have approved' in order to reveal his subjective intention. As noted by E. Gilbert 'the speaker clearly marks that he/she is making a judgment, which commits only himself/herself, and that he/she is making a statement of which he/she is the only origin' (1987: 97) (Our translation, 2020). In addition, we may note that there is a temporal difference between the moment of speaking and the event expressed by the predicate, which is seen at present as accomplished in the past. Moreover, in (51) the sentence subject does not refer to a generic term but to the specific 'Administrative Agent'. Hence, in this case, we deal with the predicate associated with a particular situation. This utterance reveals the traces of a contingent modality expressed by MAY. Anyway, it should be noted that the number of examples containing the classical epis-temic modality is quite limited in legal discourse. It is rather an exception as compared to dialogues, for example.
Divergence and Convergence of Meanings of Modal Auxiliaries
In our previous papers, we studied modal auxiliaries in specialized language genres such as interviews, scientific and legal texts. Now, it is time to present and analyze the linguistic phenomenon of convergence and divergence of meanings of modal auxiliaries, which appears to be a regular event preconditioned by a specific text type.
Moreover, the said effect can be observed only while comparing meanings of modal auxiliaries in different language genres. Such an approach provides a far better understanding of this phenomenon.
Convergence of the Dynamic MAY and CAN in Legal Discourse
Most of the above cited linguists claim that MAY and CAN are interchangeable when expressing a dynamic meaning. They often point out that MAY is simply more formal than CAN as shown in the following example:
(52) 'Master GDR' means any Regulation S Master GDR, the Rule 144A Master GDR and any temporary master GDR which may (can) represent GDRs issued pursuant to Clause and being substantially in the form set out in Part A and B of Schedule 2, pursuant to Clause .
However, E. Gilbert, I. Richard, S. Gresset note that these dynamic meanings of MAY and CAN are close, without being perfectly identical though. Hence, it is not only the issue of the language register, i.e. formal or less formal, that explains the choice of dynamic MAY or CAN in legal discourse. This observation is also confirmed by some examples from our corpus:
(53) 'Know-How' means all information and data reasonably useful for the development, process development, regulatory approval, manufacture, use, formulation or sale of Compound in the Field which (i) is
in the possession of ELI LILLY as of the November 7, 1997 or is created by ELI LILLY after the November 7, 1997, (ii) ELI LILLY can provide using reasonable efforts and (iii) ELI LILLY is free to provide without obligation to any third party. Such Know-How may include information that is secret, whether or not patentable, relating to materials, methods, processes, procedures, protocols, techniques, formulae and data reasonably useful for the development, regulatory approval, manufacture or use of Compound in the Field
According to I. Richard (2008: 206), the dynamic CAN implies a certain immanence of 'power' that the sentence subject would be able 'to exercise' at any time. In contrast to CAN, the use of MAY implies that it is only the sentence subject that could mobilize such a 'power'. Besides, with MAY, the sentence subject has access to specific capacities applicable in the given circumstances. Moreover, the said specific capacities do not form part of the sentence subject intrinsic properties. According to other interpretations, MAY in (53) implies that there is a wide variety of situations in which 'such know-how includes (or does not include) confidential information. If we replace MAY with CAN, the latter will rather reveal the intrinsic potential property of the sentence subject. E. Gilbert (2001: 62) insists that MAY fundamentally retains some sort of 'otherness' in its semantics whereas CAN emphasizes 'continuity or 'identity of the properties attributable to the sentence subject.
In this connection, we would like to present a number of elements of the previously mentioned Theory of Enunciative Operations' (TEO). It will help us to shed more light on the semantic variations manifested by the modal auxiliaries, especially in those cases when they are very close in meaning [5].
In terms of TEO, MAY and CAN are to be schematically presented in the following way (fig. 3).
■("El
■<= i)
-<= E>
I/E MAY
Fig. 3
As shown by the above scheme, I/E (=I or E) represents the initial point from which the event is evaluated. I stands for the option when the event occurs in the interior of its realization. It means that the event is valid. By contrast, E refers to the option when the event occurs on the exterior of its realization. It means that the event is not valid.
According to this concept, the epistemic MAY implies two options for 'He may be in London': 'it is possible that he is or he is not in London'. The two equal arrows show that the chances are equal that 'he is in London' (scenario I) or 'he is not in London' (scenario E). For the deontic MAY, the options prove to be the same as in 'May I come in?': 'Do you allow or do you
not allow me to come in?' Moreover, in the case of the dynamic MAY, the said bifurcation also appears to be valid though not as explicit as for the epistemic and deontic MAY. For instance, we can paraphrase the sentence 'Such Know-How may include information that is secret...' as follows: 'it is possible for such Know-How to include information that is secret (= scenario I) or it is NOT possible for such Know-How to include information that is secret (= scenario E).
By contrast, CAN implies that the realization of an event is always possible as in 'ELI LILLY can provide using reasonable efforts.', which corresponds to the I scenario. However, there may be the situations in which ELI LILLY does not provide using reasonable efforts, which is represented by a dotted arrow (the E scenario). In the case of scenario I provided by CAN, the scenario E is implicitly present in the background, as opposed to the explicit scenario E provided by MAY.
In case of negation 'CANNOT', we will arrive at: 'ELI LILLY cannot provide using reasonable efforts.' Here, CANNOT implies that 'it is not possible for ELI LILLY to provide using reasonable efforts.', which corresponds to scenario E, meaning that the realization of the event is not valid.
To sum up, both CAN and MAY express dynamic possibility. However, CAN implies that the possibility (scenario I) will be realized with little chance of another alternative (scenario E). MAY will always manifest the bifurcation (I or E), even when used in dynamic meaning.
To give a better insight into this idea, we will compare the contextual meanings of MAY, CAN with that of Present Simple. See example (53) below:
(53)'...Such Know-How includes/ can include / may include information that is secret.
According to the above cited schematic representation, Present Simple is solely associated with the scenario I realization. It means that, when using Present Simple, the event <such Know-Howinclude> is always implemented: 'Such know-how includes.'. This will be interpreted as 100% certainty of the event occurrence. The sentence predicate 'Such know-how can include' will be semantically close to Present Simple. By contrast, CAN means that it is implicitly possible for the said event not to be realized. It may be evaluated as approximately 80% certainty of the event occurrence. In case of MAY, the event occurrence is by far less probable, as compared to CAN, due to the bifurcation that MAY always implies. The event occurrence expressed by MAY will be then evaluated at approximately 60% certainty. This reasoning can be illustrated in the following way:
Present Simple (100%)>>>CAN (80%)>>>MAY (60%)>>>
In our previous paper on the modality in scientific discourse, we have mentioned some of the linguists (J. Coates and F. Palmer), who claim that the dynamic MAY and CAN are interchangeable. They note that the difference between the two auxiliaries is that MAY is considered more formal than CAN. The above reasoning has shown that the difference lies mostly in the
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degree of certainty implied by MAY and CAN rather than in the problem of the formal register as claimed by J. Coates and F. Palmer. The interchangeability of the dynamic MAY and CAN in scientific discourse is easily shown illustrated in the following example:
(54) Taking this perspective (and oversimplifying), 35 we may/can recognize three possible types of change in lexical significance that may/can be proposed and debated.
Divergence of Deontic MAY and CAN in Legal Discourse
In our corpus of legal texts, we did not any examples with the deontic CAN expressing permission. In this regard, I. Richard also notes a very low frequency of the deontic CAN in her corpus. She claims (Richard, 2008: 199) that such scarce use of CAN is determined by the difference between the deontic CAN and MAY: 'if he/ she [the speaker] prefers CAN to MAY, it is because he/ she does not need to explicitly show the authorization or prohibition expressed by him/her [...]. CAN is more neutral than MAY because of his/her [speaker's] withdrawal and CAN is semantically less explicit than the verbs of authorization' (Our translation, 2020).
E. Gilbert (2016: 28) notes that, with CAN, one focuses on the recipient of the permission 'who is put forward, as the holder of the permission' whereas, with MAY, one is interested in the origin of the permission 'which matters above all (Our translation, 2020). Thus, MAY implies power, the external authority, which grants permission.
Actually, some of the linguists doubt that CAN is capable of expressing deontic permission. For F. Palmer, it is almost clear that CAN has no deontic meaning: « /t would even be possible to suggest that CAN is, in fact, never deontic in its basic meaning, that the only deontic possibility modal is MAY... » (1990: 72). If we take into account the latter F. Palmer's comment, we can assume why the deontic CAN is rare in legal discourse. We can suppose that the risk to interpret CAN as a dynamic possibility makes its use so scarce in legal discourse. Such a context implies a hierarchical relation between the deontic source and target. MAY preserves the idea of granting permission from the exterior source. In contrast, CAN risks leveling such a hierarchical relationship because it can involve an abstraction of authority, which is not acceptable in legal discourse.
Etymology provides another credible evidence for the inability of Can to express deontic permission. According to the Oxford Etymology Dictionary, CAN derives from the Proto-Germanic verb 'kunnjanan', which meant 'to be mentally able, to have learned'. In the Old English, this verb transformed into 'cunnan' meaning 'to know'. According to the dictionary, it was less commonly used 'as an auxiliary 'to have power or to 5 be able'. MAY derives from the Old English 'm&g' -5 'am able', which, in its turn, originates from the ProtoS Germanic root 'maganan'. It meant 'to be able, to have S power.[6] Thus, we can see that MAY has preserved sb so far the initial meaning of having power whereas
CAN, with time, has lost its original meaning of 'knowledge'. Based on this reasoning, CAN seems doubtful or even unacceptable in the following statement, which has to express deontic permission:
(55) *?? Shareholders can mortgage or charge their Shares [7].
In this utterance, the deontic source can be considered generic due to a lack of any explicit reference to such a source. Thus, CAN entails a risk of interpreting it as expressing dynamic possibility in the context which should express deontic permission. CAN may level the hierarchical relationship between the deon-tic source and target. Consequently, a legal drafter is obliged to use MAY, which guarantees the granting of power provided by a deontic source to the deontic agent 'Shareholders'.
Divergence and Convergence of CAN and MAY from a Discourse Analysis Perspective
Our analysis of the convergence and divergence of MAY and CAN in legal discourse suggests that these phenomena depend not only on the proper meanings of these modal auxiliaries but also on the context in which they occur. In other words, their interpretation results from their basic semantics and the contextual parameters in the given discourse. To illustrate this, we will take two steps. First, we will change one of the contextual parameters in the above-cited examples:
(53)' .Such Know-How may include information that is secret.
(53)''May such Know-How include information that is secret?
(54) Shareholders may mortgage or charge their Shares
(54)' May shareholders mortgage or change their Shares?
In (53)' and (54)' we have changed the syntactic structure. Previously, we have mentioned that one of the main features of legal discourse is the absence of interrogative sentences. Only declarative sentences prevail therein, which is explicable since imposing and stating legal provisions favour declarative type of sentences. With the transfer from a statement to a question in (54) and (54)', we arrive at a context other than a specifically legal language. It may be an interview, a professional exchange, a legal article or a journalistic essay on legal issues. Simultaneously with the change of genre, the interpretation of MAY in (54)' is seen to be destabilized. We can no longer define it as having either dynamic or deontic meaning but rather as an epistemic possibility.
Secondly, from a discourse analysis perspective, we can suggest that there is a pragmatic bond between the inherent semantics of the modals and the contextual environment. We observe the same divergence of the dynamic CAN and MAY in scientific discourse as in the following example:
(56) The two English comparatives may serve as a first example.
It is possible to substitute MAY for CAN with a slight change in meaning, i.e. with a slight change in the de-
gree of certainty (examples 53 and 54). In our earlier paper on scientific discourse, we have shown that declarative sentences with the third person as the sentence subject also prevail in scientific texts. However, dialogues imply a discursive exchange between the speaker and co-speaker(s). Therefore, we can find there a variety of sentence subjects combined with MAY:
(57) You know, some people may be hypocritical.
Similar to scientific and legal texts, the dynamic MAY in (57) is still acceptable. Whereas its interpretation begins to fluctuate, if we replace 'some people' with 'you':
(57)'You know, [you] may be hypocritical.
In (57)' one is free to choose between either dynamic or epistemic meaning of MAY.
We have previously mentioned that the deontic MAY and CAN are hardly interchangeable in legal documents since it is crucial for a legal drafter to show the hierarchical trace of granting permission from the deontic source to the deontic explicit/implicit agent. CAN may provoke ambiguity in interpretations, which is therein unacceptable. Unlike in legal discourse, dialogues allow one to interchange MAY with CAN as in the following example:
(58) MR. WOLCHEZK: May (Can) I have your attention please? This is principal Wolchezk. I am deeply saddened to have to tell you that early this morning your classmate Laura Palmer was found dead. This is a terrible moment for all of us.
(59) SHERIFF TRUMAN: Bobby we're gonna have you make a phone call. You can (may) call your parents and they can arrange to get a lawyer to be with you when we talk to you again.
These examples reveal an explicit communicative exchange in the given situation. In this case, the speaker is free to select either MAY or CAN to ask or give permission. The speaker (Mr WOLCHEZK) will certainly start with MAY to signal that it is the co-speaker (SHERIFF TRUMAN) who is a real deontic source of the permission in (58). By contrast, in a declarative sentence, the speaker will select MAY to show his/her hierarchical superiority over the co-speaker. However, a spontaneous communicative exchange in dialogues makes the difference between MAY and CAN less crucial as compared to written legal language. Hence, we can observe the convergence of the deontic MAY and CAN in dialogues with the same set of contextual parameters: similar type of discourse, syntactic structure, referents of the sentence subject, etc.
Convergence of SHALL, WILL, and MUST in Legal Discourse
We have noticed that WILL, SHALL and MUST in legal discourse frequently manifest similar (though not identical) deontic meanings, which makes them occasional contextual synonyms:
(60) Decides that the Paris Committee on Capacity-building will annually focus on an area or theme related to enhanced technical exchange on capacity-building, with the purpose of maintaining up-to-date
knowledge on the successes and challenges in building capacity effectively in a particular area.
(61) Every member who desires to transfer any share or shares (hereinafter called the vendor) shall give to the Company notice in writing of such desire (hereinafter called transfer notice). Transfer notice must state the amount of considered by the vendor as a reasonable price, and such transfer notice shall constitute the Company as the vendor's agent for the sale of the shares to any members of the Company.
In (60) WILL implies a deontic injunction whereas SHALL and MUST refer to a deontic obligation and deontic necessity respectively.
Let us remind that, according to E. Gilbert, the projection into the future marked by SHALL falls on the sentence subject which does not enjoy any kind of autonomy. In contrast to SHALL, the projection marked by WILL originates from the sentence subject. Generally speaking, with WILL, the speaker selects an agent that has to validate the action. In order to show the semantic subtitles of the above three modal auxiliaries, we will again use some of TEO's elements (fig. 4).
Fig. 4
As shown on figure 3, SHALL and WILL imply the initial point (I/E) from which the event expressed by the predicate is seen. (I/E) corresponds to the moment of speaking (To). SHALL and WILL suggest only one possible scenario I which will be realized in the future at the moment T1. In contrast to MAY, CAN, and MUST, in case of SHALL and WILL, nothing is said about scenario E situated aside. In other words, 'such notice transfer SHALL constitute the Company as the vendors agent for the sale of the shares' means that 'it is obligatory for the notice transfer to constitute the Company.' without any option E. Alternatively, SHALL NOT will lead to the following transformation: 'such notice transfer SHALL NOT constitute the Company as the vendors agent for the sale of the shares.'. This statement will suggest that 'it is obligatory for the notice transfer NOT to constitute.'.Such prohibition for the notice not to constitute will correspond to the scenario E.
Likewise, we can interpret WILL and WILL+NOT. 'Decides that the Paris Committee on Capacity-
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building W/LL annually focus on an area or theme related to enhanced technical exchange' means that '. the Paris Committee on Capacity-building are instructed to annually focus on.', and this case falls under the scenario /. In case of negation, this statement can be modified in the following way: 'Decides that the Paris Committee on Capacity-building W/LL NOT annually focus on an area or theme related to enhanced technical exchange'. That will result in the following paraphrase: 'the Paris Committee on Capacity-building are NOT instructed to annually focus on an area...'. Hence, such an instruction not to focus. refers to scenario E.
The difference between SHALL and WILL can be shown in figure 4. With SHALL, there is the only possible / scenario which entails the non-autonomy of the sentence subject. WILL also implies only one possible / scenario though the agentivity of the sentence subject plays a crucial role in the realization of the event.
From a diachronic perspective, SHALL originates from SCULAN or SCEAL that meant 'to owe, be under obligation'. In this regard, F. Visser cited by E. Gilbert (2001: 96) indicates that "he sceal + infinitive' was originally used for the events that were seen as predestined or providentially decreed [...], and later, when the idea of divine interposition was weakened or absent, for events predetermined by fate or general necessity, and eventually for events that were sure to happen independently of anybody's will'. The idea of using SHALL in legal discourse is expressed by J. Lynch, also cited by E. Gilbert (2001: 88), who claims that SHALL means 'let it be so' (fig. 5).
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The use of MUST implies that / scenario is prioritized. In contrast to WILL and SHALL, the E alternative scenario is discarded though it is not totally left out. Hence, 'Transfer notice must state the amount considered by the vendor.' can be interpreted as 'it is deontically necessary for transfer notice to state the amount.' though there are chances that such a transfer notice does not or will not state the amount. Moreover, we could suggest that E scenario is always at the background, as shown in figure 5. Such a position of E scenario gives one the impression that, in the legal context, the deontic MUST sounds 'weaker' than the deontic SHALL or WILL since they both imply a clear choice of scenario /, with the alternative E discarded. In addition, as noted by E. Gilbert (2001: 98), the obligations expressed by SHALL and WILL in legal dis-
course are independent from any subjective point of view, and any particular deontic source. Consequently, according to the linguist, WILL and SHALL express indisputable obligations, which cannot be called into question. Traditionally, the deontic MUST has been considered as an analogue of the deontic SHALL outside of the legal context. It is widely used in other types of discourses. Though the deontic WILL is pragmatically similar to the deontic SHALL and MUST in legal discourse, it does not seem to be regularly interchangeable with the said couple of modals. We can suggest that the agentivity of the sentence subject, implied by WILL, is not systematically compatible with the non-autonomy of deontic SHALL and MUST.
Apart from the formal schematic representation provided by TEO for SHALL and MUST, there is a certain number of linguistic explanations of the semantic difference between these two modal auxiliaries. We would like to cite two of them. In our view, they properly illustrate the formal representation of SHALL and MUST provided by TEO.
E. Gilbert cites an extract from 'Squash - Rules of the World Singles Game', which surprisingly explain the difference between SHALL and MUST in a clear manner: The use of the word 'shall' in the rules indicates compulsion and the lack of any alternative. The word 'must indicates a required course of action with considerations to be taken into account if the action is not carried out.'
I. Richard (2008: 63) notes that 'if we consider the present as an indefinite extension towards the future, must can confer on the obligation a timeless character, and acquire, by covering the entire temporal axis, a universal character: the utterance is presented as being true at any time' (Our translation, 2020). As regards SHALL, I. Richard provides the following reasoning: 'The temporal scope of shall extends from the moment of utterance towards infinity: the obligation is projected towards the future and will remain valid until further notice (i.e. to a counter-order expressed by another utterance with shall in the corpus). This is what makes it possible to present the update of the obligation as guaranteed) (Our translation, 2020).
In this connection, two interesting facts should be noted. The Plain English Movement initiated in the United States in the 1970s suggests that SHALL should be replaced with the Present Simple and MUST. This fact demonstrates that SHALL is semantically close to MUST. Proceeding from this point, SHALL and the Present Simple appear to share the same semantic field in Legal English. There is one more argument in favour of close semantic links between SHALL and the Present Simple. SHALL is frequently translated into the present tense at least in Russian and French legal documents. The discussion of the semantic correlation between SHALL and the Present Simple, and also speculations on whether it is a good idea to get rid of SHALL in legal English will be out of scope of this paper.
We could simply note here that the use of SHALL, MUST, WILL and the Present Simple provides a wide modal palette that a legal drafter can use to express
different shades of meaning. However, if a legal drafter continues to employ all the above modals, it would be preferable to reserve each of these four modal markers for a particular type of obligation in order to minimize risks of ambiguity, as noted by I. Richard. In other words, one should avoid indiscriminate use of all these four modal forms to describe one and same type of obligations.
Similar to the dynamic MAY and CAN, the convergence of the deontic SHALL, WILL, and MUST seems to be triggered by a set of specific contextual parameters. The slightest change in the contextual environment will put an end to this phenomenon. For example, the said convergence will disappear if we replace the subject in the third person (singular or plural) in (60) and (61) with the first person singular:
(60)' Decides that [I] will annually focus on an area or theme related to enhanced technical exchange on capacity-building, with the purpose of maintaining up-to-date knowledge on the successes and challenges in building capacity effectively in a particular area
(61)' Every member who desires to transfer any share or shares (hereinafter called the vendor) shall give to the Company notice in writing of such desire (hereinafter called transfer notice). [I] must state the amount of considered by the vendor as a reasonable price, and [I] shall constitute the Company as the vendor's agent for the sale of the shares to any members of the Company.
The interpretation of I + WILL in (60)' is easily seen to imply either an epistemic prediction or a dynamic intention. In (60)' I + MUST may be construed as a dynamic necessity, i.e. 'it is necessary for me to state.', or even as a deontic obligation imposed by the sentence subject, coinciding with the speaker, on itself: 'I am obliged myself to state. ' I + SHALL can also be interpreted either as a strong determination revealing the non-autonomy of the sentence subject, i.e. 'I am determined to constitute.', or even as an epistemic prediction: 'I predict that I will inevitably constitute.'. The use of the first person singular as a sentence subject has led to the immediate divergence of SHALL, WILL, and MUST, which is not acceptable in a legal document.
Divergence of SHALL and WILL from a Discourse Analysis Perspective
Previously, we have analyzed the examples from legal texts, characterized by the same set of contextual parameters, in which the meanings SHALL and WILL converge. Now we would like to consider some pieces of dialogues, representing another language genre. Here, the influence of different contextual environment is seen to provoke the divergence in meaning of SHALL and WILL:
(62) COOPER: What will I find there?
AUDREY: Pictures my father paid for.
(63) HAROLD: Uhm... Shall I read something from it? It seems appropriate?
These types of statements are similar to those that J. Coates (1983: 188) cites in her work:
(64) Will I get a cup of coffee?
(65) Shall I get a cup of coffee?
At first glance, one might think that, in the two above examples, we deal with the same type of questioning. However, this is not the case. J. Coates writes that in (64) 'it is a straight-forward question, seeking information about future happenings'. J Coates explains that it implies 'enquiring about arrangements at an evening class'. It uses the verb 'to get in the sense of 'to receive' (non-agentive)'. E. Gilbert adds that the speaker, the referent of the sentence subject 'I', inquires whether he/she will be offered a cup of coffee. The verb 'to get acquires the non-agentive sense of 'to receive'. Hence, the most important issue is what will happen to the speaker who is in focus in this case. The speaker appears to be the beneficiary of the event, as pointed out by E Gilbert.
On the other hand, in (65), the use of SHALL implies 'questioning the addressee's feelings', as noted by J. Coates. E. Gilbert points out that in (65) the reasoning is 'totally different'. We no longer associate it with a simple question, but rather with a service offer. E. Gilbert specifies that the real significance of this question is the co-speaker's wish to whom the referent of the sentence subject 'I', the speaker, addresses. In other words, this type of utterance points to the speaker who is dependent on his/her co-speaker. E. Gilbert notes that the speaker 'completely relies on the will of his/her interlocutor as to the validation of the intended predicate' (Our translation, 2020). The sentence subject 'I' is therefore non-autonomous. Thus, the topic of the question does not refer to the future, as E Gilbert claims, but to the present. J. Coates share his observation. She provides the following paraphrase to demonstrate that it is a wish or a will expressed by the co-speaker, which relates to the present: 'Would you like me to get a cup of coffee?'
Based on the above reasoning by J. Coates and E. Gilbert, we will suggest our own interpretation of (62) and (63). Thus, (62) represents an open-ended question expressed by the referent of the sentence subject 'I', i.e. the speaker. He asks his question related to the upcoming event, the meaning of 'to find' being non-agentive. This question is close to 'What will I see there?' Thus, the speaker is seen to be the beneficiary of the event. In this case, WILL implies the epis-temic prediction.
SHALL in (63) appears to express a close-ended question [8]. It implies an action to be taken by the speaker, the referent of the sentence subject 'I'. We can see that the meaning of the verb 'to read' is seen to be agentive. However, it is the co-speaker, implicitly present in this statement, who is responsible for the validation of the predicate. Following J. Coates' example with SHALL in (65), we refer to an event related to the present, not to the future: 'Do you advise me to read something from it?'
Thus, we have shown that the certain meanings of SHALL, WILL, MUST, MAY, and CAN can converge or diverge, depending on the semantic and pragmatic properties of the context in which they occur. In our earlier paper, we have also studied the convergence of
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MAY, CAN, WILL and the Present Simple in scientific discourse. We suggest that it is a new and interesting perspective on the analysis of modal auxiliaries. This approach implies the comparing of their meanings in different discourses, taking into consideration a set of specific contextual parameters.
Pivot Modality in Legal Discourse
The concept of pivot modality has been worked out in our earlier works, based on the idea proposed by the Russian linguist O. Moskal'skaja [11 ]. According to this concept, every text is assumed to possess a certain modal pivot, which corresponds to its pragmatic and semantic value. Proceeding from our vision, pivot modality represents a modal axis determining and organizing the modal landscape of any given contextual environment, which has been proved by the discourse analysis approach. This concept finds echo in the ideas of M. Gotti and M. Dossena (2001: 13) that note:'ques-tions concerning modality are central to the analysis of specialized discourse, as the choice and use of its various elements often represent a signal of markedness typical of a specific text type or of a particular discipline, and often constitutes one of the characterizing conventions on which a certain specialized genre is based.
The statistics of our study shows that the concept of pivot modality appears to be perfectly applicable to the four language genres (journalistic, TV scripts, scientific, and legal) considered in our present and earlier works. It is deontic modality that predominates in legal texts, which can be defined as pivot modality for this specialized discourse.
Conclusion
In the course of this study, we proceeded from the assumption that modals exhibit semantic peculiarities within a particular language genre. We have studied semantic overtones in modal meanings of SHALL, WILL, MUST, MAY, and CAN in legal texts, represented by B2B contracts and agreements.
From a discourse analysis perspective, we managed to establish common compositional patterns for the chosen text types, based on J-P. Bronckart's representation. Each pattern consists of a sequence of meaningful textual segments, performing a specific content function: the EXPOSITION, the IMPOSITION, the ESTIMATION and the ANTICIPATION. The segments are distributed throughout the text of a legal document in accordance with a legal drafter's intention. The same approach to identify prototypical compositional patterns could be applied to other types of discourses.
The meanings of said modal auxiliaries were analyzed in a specific set of contextual parameters, which characterizes legalese as a specialized language genre. Based on some of the elements of the French Theory of Enunciative Operations, we have interpreted the meanings of SHALL, WILL, MUST, MAY, and CAN in a more formal manner than simple classical description. Such a formal representation enables us to more
clearly identify the shades of the said modals meanings, which appear to be similar in a legal context.
Having studied SHALL, WILL, MUST, MAY, and CAN in legal genre, we managed to identify the operational modal pivot for the chosen set of legal texts. It is deontic modality that constitutes the modal pivot for legalese, and organizes the modal landscape in the given discourse, which has been proved by our qualitative and quantitative data.
In addition, this research brings a new focus on studying modals.
Traditionally, linguists focus on different meanings of modals taken from various contexts without specifically being interested in such contexts. Otherwise, scholars analyze modality within a specific discourse. In this paper, we have decided to adopt a new approach: comparing and contrasting SHALL, WILL, MUST, MAY, and CAN in the same syntactic structures through various discourses. This method has provided us with a deeper insight into the convergence and divergence of the modal meanings. Besides, this research is a continuation of our previous paper dedicated to the study of a scientific discourse.
MODALITY IN LEGAL DISCOURSE. MUST, CAN, MAY, WILL AND SHALL: BETWEEN OBLIGATION AND PERMISSION
Famina N.V., Osminkin A.I.
Moscow Automobile and Highway State Technical University, New Sorbonne University
In this paper, we intend to investigate expression of modality in legal discourse by analyzing the most specific meanings of such modal auxiliaries as SHALL, WILL, MUST, MAY, and CAN.. It should be noted that the predominant type of modality found in legal documents is associated with deontic modality, i.e. that of deontic obligation and permission expressed by the above-mentioned modals [1]. Moreover, we will eventually show how the new trends initiated by the Plain English Movement currently affect the use of modals in legal discourse. We will interpret the meanings of SHALL, WILL, MUST, MAY, and CAN in a more formal manner than simple classical description. Besides, based on our previous studies of modality in various contexts, we will consider in more detail the divergence and convergence of the said modals' meanings using the discourse analysis approach.
Keywords: text modality, legal discourse, convergence and divergence of modal meanings, legal present tense.
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