Shall, Must, May: The Logic of Legal Obligation and Permission
AbstractThis article seeks to place legal drafting into a structured, logical system. It divides legal sentences into those which confer obligation or permission (called "performatives"), and those which describe obligation or permission (called "deontic declaratives"). It adopts George Coode's views as to the grammatical form of performatives. It then attempts to classify the logical relations between the various types of sentences. The relation holding between deontic declaratives is the traditional relation of "entailment"; the relation holding between performatives is a new relation the author calls "covering". In the case of performatives that impose obligations ("imperatives"), covering relations mirror entailment relations. The situation is more complicated for performatives that grant permission ("permissives"). The author attempts to analyze permissives in terms of providing defences to claims. He finds that covering relations between permissives do not mirror entailment relations. To this, and to confusions between performatives and declaratives, the author attributes various "paradoxes of permission." The author observes that the results of inconsistent drafting are "quandaries" in which a person is both obliged to perform an act and is prohibited from performing it. Despite current trends toward plain language drafting, the author endorses Coode's view that logical analysis is the key to improving legal drafting.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.