The Use of "Shall" Versus "May" in California Statutes

The Use of "Shall" Versus "May" in California Statutes By Chris Micheli

What are the differences between the words “shall” and “may” in statutes? As a general rule, the use of the word "shall" is to impose a duty on a person or people or to mandate action by a person or people. In other words, a bill drafter should use the word "shall" to say a person or people "has a duty to" do something or "has to" do something.

In other jurisdictions, the word “must,” rather than "shall," is viewed as the proper action verb to use when the action is only required to achieve an end. Also, some states try to avoid using the word “shall” to confer a right.

In almost all jurisdictions, including California, bill drafters use the word "may" to express permission to do something or preserve power to do something. Basically, the word "may" is used to authorize or permit, rather than command.

Most of California’s 29 Codes, which contain the state’s more than 155,000 statutes, contain a preliminary provision which states: “Shall” is mandatory and “may” is permissive.

Therefore, in California bills and statutes, the word “shall” is used to indicate that something is mandatory and normally implies that to accomplish something someone must act. The word “shall” is also used to impose a duty, direction, or command,

As a final note, California bill drafters do not state, “no person shall….” Why? Basically, this phrase means that there is not anyone who has a duty to engage in the specified action. On the other hand, the proper way to prohibit an action is to use the term “may not” in connection with the prohibited action. The term “may not” is used to prevent an entity with authority to act in a certain situation.

 

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