LACUS
FORUM
XXXI
Interconnections
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A PRAGMATIC PERSPECTIVE ON THE INTERPRETATION OF
MODAL VERBS IN CONSTITUTIONAL DOCUMENTS
Ibileye Gbenga
Ahmadu Bello University (Zaria, Nigeria)
according to black (990:3), the constitution is the organic and fundamental law
of a nation or state. Whether written or unwritten, it establishes the character and conception of its government, laying the basic principles to which the government must
conform. It organizes the structure of the government, regulating, distributing and
limiting the functions of its different departments. It prescribes the extent and manner
of the exercise of the government’s sovereign powers. The constitution, in other words,
stipulates the rights and obligations of individuals in the organization or government or
state that subscribes to it. The interpretation of the constitution determines the action
of the judicial, legislative, and executive arms of government. The constitution could in
fact be said to be central to the operation of all modern democracies.
The constitution is a document which must be carefully drafted to give precision to
its interpretation. This is because, as Crystal and Davy (968:72) say, human nature
makes it imperative for individuals to become morbidly curious about their obligations, even to see if they may possibly be avoided.
One of the most important ways in which precision is achieved in the constitution and limits of power are imposed is found in the linguistic elements called modal
auxiliary verbs—shall, may, will, would, can, should, etc.—which are used frequently
in a constitution.
The modal auxiliary verbs with their peculiar meaning, and significance for understanding and shaping the constitutional actions of the citizens of any particular country or society are used fairly frequently. In the Constitution of the Federal Republic
of Nigeria of 979, which forms the basis of this research, the modals are used about
one thousand three hundred (,300) times. Curiously, however, these modal auxiliary
verbs as deployed in the constitution, as in other legal documents, do not seem to
have stable or fixed meaning as they are understood and used in linguistics and in
ordinary non-legal communication. This propensity for variegated meanings and
interpretations has given rise to legal disputes and confusion.
An example of the helplessness of legal authorities in the interpretation of the
meaning of modal auxiliary verbs can be found in Black (990:979):
‘may’: an auxiliary verb qualifying the meaning of another verb by expressing
ability, competency, liberty, permission, possibility, probability or contingency.
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From this, it is fairly obvious that the meaning of may can be almost anything imaginable. Explaining further the meaning of may, Black (ibid.) states:
In construction of statutes and presumably also in construction of federal
rules, word ‘may’ as opposed to ‘shall’ is indicative of discretion or choice
between two or more alternatives, but context in which word appears must be
controlling factor.
Judging from the above, it seems obvious that context plays an important role in the
process of interpreting the modal auxiliary verbs in a constitution. In other words,
the modal auxiliary verbs play complementary roles with other words in context to
determine the meaning and interpretation of constitutional directives and expressions. Both the modals and the totality of the expressions of which they are a part
have to be understood in order for the constitution to have the intended effects on the
government and the governed.
It is the goal of this paper to study the modal auxiliary verbs and determine a systematic way by which context determines one pragmatic output rather than another.
. the research problem. Modal auxiliary verbs, in ordinary usage and in the
constitution, have intractable meanings. Yet these meanings have been exploited to
legal advantage and disadvantage because in constitutional contexts, there has been
no systematic pattern for explicating the meaning of these modals. In fact, the legal
exploitation has provided the only explication, and it is hardly systematic.
Most of the existing efforts at explicating the meaning of the modals have been solely
from the syntactic point of view. Not much contextual support has been advanced for
the systematic study of modals in the constitution. Yet legal experts and authorities have
argued against making the law subservient to grammar. The specific questions which
our paper aims at answering include:
(a) What meaning do modals have in the constitution?
(b) To what extent do modals determine the constitutional actions of citizens as
a result of their inclusion in the constitution?
(c) What pragmatic signals could individuals employ to understand modals as
elements of communication in the constitution?
(d) Is the meaning of modal auxiliary verbs in the constitution the same as in
other contexts? Is it similar? Or is it altogether different?
2. literature overview. According to Lyons (968), most English words that we
refer to as modal auxiliary verbs do not necessarily have a future reference. Admittedly, some of them (for example will and shall) can be used with the future in mind
but they do not always refer to the future. Lyons sees modality as a category of scale
and states that the modal auxiliary verbs:
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A pragmatic perspective on the interpretation of modal verbs
371
may be categorized into a larger or smaller number of subdivisions (e.g. ‘certainty’, ‘probability’, ‘possibility’ or ‘stronger’ and ‘weaker’ or different kinds of
‘obligation’ and ‘necessity’; and so on).
This observation is of great importance to the present study because the constitution
and legal documents generally limit the exercise of power and privileges. However,
because ‘scales’ might not be exact and precise in terms of their boundaries, misinterpretation can and does arise in the course of using the constitution, especially when
one or the other of the modal auxiliary verbs has been used.
Perhaps of greater relevance to this paper is Lyon’s view that there is a form of affinity in mood between imperative sentences and the modalities of wish or necessity, on
the one hand, and between interrogative sentences and the modality of possibility
on the other. By this, Lyons might be interpreted as meaning that modal auxiliary
verbs which express wish or necessity are necessarily commands. This is relevant here,
because we want to examine how the Constitution of the Federal Republic of Nigeria
of 979 has used modal auxiliary verbs as compelling or permissive linguistic signals
for rights and obligations which are usually seen as unalienable since the adoption of
the U. S. constitution.
Lyons further argues that there is an intersection between mood and tense.
Although the category of mood is of little concern to this research, it is important
to emphasise that some understanding of mood sheds light on modality, because
invariably, the distinction between mood and modality is quite narrow. In Lyons’
view, tense could neutralize and change the mood, and of necessity, the meaning of a
modal auxiliary verb.
Lyons (968), also specifically points out shall and will as not being just elements of
the future tense, as traditional grammarians believed. Lyons believes that when a speaker
uses shall, he ‘puts himself forward as guarantor, as it were, of the truth or occurrence of
the event he refers to’. This might be taken to have a two-way application:
(a) the speaker can put himself forward as the guarantor of an event he is involved
in or
(b) he can put himself forward as the guarantor or enforcer of an event in which
another person is involved.
As a result of this guarantee, shall and, to an extent, will are opposed to such other
modals as may and can, as a result of the permissiveness of the latter two. These modals
predominate in the constitution under examination and it is possible to say that, apart
from ‘can’, which signals ability and permission and which is scarcely used in legal and
quasi-legal documents, all others convey compulsion, obligation and willingness which
are authoritatively enforced through the instrumentality of state powers.
In a similar vein, Halliday and Hassan (976) and Palmer (98) believe that
modality is the speaker’s assessment of the probabilities inherent in the situation or
of the rights and duties of the addressee. Palmer (98) further identifies two kinds
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Modality
Type
Ibileye Gbenga
. Modalization
(Indicative type)
2. Modulation
i. Probability (may be)
ii. Usuality (often)
i. Obligation (has to, must)
ii. Inclination (wants to)
Figure 1. Categories of modals.
of modal: epistemic and deontic. Epistemic modals indicate the speaker’s attitude
towards the probability of what is expressed in his utterance, while deontic modals
indicate the speaker’s attitude to the addressee or to himself in terms of what is permitted or what is ordered. The deontic/epistemic distinction that Palmer has elaborated
upon elsewhere (e.g. Palmer 986, and 990) is quite instructive for an understanding
of the English modal verbs.
Halliday (985), considers the modals under two subcategories (Figure ). In this
case, certain modal auxiliary verbs will typically be categorized as being indicative
of modalization, in which case they are indicative of probability and usuality; and
modulation, which indicates obligation, that which the speaker wants to do. In this
case, what the speaker wants done is compulsory for the addressee while that which
the speaker must or wants to do is mandatory on his part.
These categories from Halliday (985) can broadly be matched with analyses by
other scholars who have divided the modals into epistemic and deontic categories.
Modalization corresponds to epistemic modals while modulation corresponds to the
deontic type.
Halliday’s insight fits quite well into the constitutional frame. The constitution,
through the use of these modal auxiliary verbs, compels the addressee to perform some
actions. It also holds itself bound to discharge certain responsibilities to the addressee.
Perhaps instructive for our research is Halliday’s observation that the modal auxiliary verbs can, could, may, might, shall, should, would, will, would, and so on have
overlapping functions and uses. If this is true, as the present study shows, then we
need to make their uses and functions in the constitution explicit, because a constitutional context should not allow for vagueness or ambiguity.
Palmer (986 and 990), citing Jespersen (924), Lewis (946), Von Wright (95), and
Lyons (977), considers the distinction between epistemic and deontic modality as part of
the wider distinction between the use of language as a mode of action and language as a
sign of thought.These views are also echoed by Leech (97,983) and Levinson (983).
Epistemic modality refers to the notions of possibility, necessity and to any indication of the speaker’s degree of commitment to what he says. For instance, a speaker
can pass judgment or make an evidential sentence in four ways:
i. that he is speculating about it
ii. that he is presenting it as a deduction
iii. that he has been told about it
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A pragmatic perspective on the interpretation of modal verbs
373
iv. that it is a matter of appearance only, based on the evidence of (possibly fallible) senses.
All four types are concerned with the indication by the speaker of his (lack of ) commitment to the truth of the proposition being expressed. May and must are used
in this sense. They express what is epistemically possible and what is epistemically
necessary. Will also has an epistemic use. It can be used to make judgments about
situations. In this case, it falls somewhere between may, which indicates a possible
judgment, and must, which expresses the only judgment. Will in this regard expresses
a reasonable judgment. In this respect, it can be reasonably asserted that will has a
future reference because the future is not (fully) known, but it is a reasonable assumption that it will ensue. For instance, ‘That will be his father’ means that it is reasonable
to say that that is his father.
Deontic modality, on the other hand, is concerned with action by others and by
the speaker himself. According to Palmer (97, 974, 979,983, 986 and 990), the
most important types of deontic modality in a study are Directives and Commissives.
In deontic modality, may and must are typically used to express possibility, necessity
and obligation. For instance, in saying ‘You may/must come tomorrow’, the speaker
is imposing the possibility/necessity of coming upon the addressee.
From the pragmatic perspective, consideration has been given to functions of modal
auxiliary verbs and especially to the context in which utterances are used. Speech act
theory, which is one of the most important pragmatic insights, was evolved by Austin
(962) as a reaction against the Logical Positivist School of philosophy, which held
that only utterances that have truth-value could be studied.
Based on Austin’s earlier theory, only speech acts of constative and performative
utterances were studied. Constative utterances are those which merely state a fact. For
example, The earth is spherical can either be true or false. Performative utterances, on
the other hand, are said to be utterances, the production of which constitutes the performance of the acts they name. The utterance of I name this ship the Queen Tinubu is
a performative utterance. The use of the first person I and the verb name, which is in
the simple present active form, confers the name Queen Tinubu on the ship, provided
it is uttered in the right circumstances, by the right person. This distinction, which is
regarded as the Former Theory of the speech acts was jettisoned by Austin because
of its circular nature.
Austin then proposed what is generally regarded as the Latter Theory of the speech
act. In this latter theory, three acts are said to be concurrently performed in the production of an utterance: a locutionary act, which is the act of saying something in the
full sense of say; an illocutionary act, which is an act performed in saying something,
the act identified by the explicit performative; and a perlocutionary act, which is the
act performed by or as a result of saying.
Quite a number of sentences in the 979 Constitution fall within these sorts of
act. Although many of these statements are not uttered orally, they can be regarded
as said by the constitution to the hearer (any Nigerian). The speaker in an oath can
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be regarded as the oath maker while the hearer is the constitution or the person or
persons authorized to listen by the constitution, i.e. to witness the oath. At the level of
locution, the language employed in the constitution is considered intelligible to the
listener. In terms of the illocutionary act being performed, much reliance has to be
made on certain signals in what is said. For the purposes of this paper, those signals
are the modal auxiliary verbs. The perlocutionary acts constitute the extent to which
an effect is achieved by what is said.
Austin (962), identified five categories of illocutionary acts on the basis of the conditions fulfilled: Verdictives, Exercitives, Commissives, Expositives, and Behabitives.
Because of the circularity of this classification, Searle (979) proposed an alternative
classification based on five different categories.
(a) Assertives, whose successful performance depends on the truth or falsity
of their utterer. Oath taking can be said to belong to this sub-classification.
When an oath-taker undertakes an oath, the success of his assertion depends
on how truthfully he/she carries out what is contained in it. Although this
truthfulness or falsity lies outside the purview of what can be examined linguistically, it relies heavily on linguistic signals, especially as represented by
modal auxiliary verbs, to interpret oaths properly under the constitution.
(b) Directives, the successful performance of which includes the speaker’s desire
that the listener perform some future action. Under this category, we have
acts like command, request, beg, plead and so on. These acts, especially command and request, typically employ the modal shall in the constitution. They
direct the listener to perform the act named or be liable to the punishment or
the benefit allotted, as the case may be.
(c) Commissives are acts that commit the speaker (and not the hearer) to some
future action. Promise is an important act here; hence, oath taking belongs
here, too. Illustrations of this occur throughout the text of the constitution.
For an utterance to constitute a promise, the speaker must be committed to
an intention to actually doing (fulfilling) what his utterance names. When an
individual makes an oath (or a promise), the oath commits him and not the
hearer to perform the act named in the oath. In making promises and oaths,
modal auxiliary verbs play a central role.
(d) Searle’s expressives include psychological acts like thank, congratulate, apologize, condole, deplore, etc. Their successful performance relies on the sincere
feeling of the speaker. These acts are rarely found in the constitution. In the
979 Constitution of the Federal Republic of Nigeria for instance, no use of
expressives is found.
(e) Declarations correspond fairly well with the performative utterances of Austin
(962). Their successful performance guarantees that the prepositional content corresponds to the world. The most important feature of this category of
illocutions is that there must be an extra-linguistic institution and the speaker
and hearer must occupy special places within this institution. The constitution
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A pragmatic perspective on the interpretation of modal verbs
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is that institution which represents the state. Declarations abound in the constitution. It can be said that most acts, which make one form of promulgation
or statement, are declarations in the sense employed by Searle. It can also be
said that the constitution is an extra-linguistic institution representing the
state which gives all declarations the force of law.
Speech Act Theory as espoused by both Austin and Searle is very important for this
paper, as it affords us a pragmatic perspective in the analysis of our data. This insight
is combined with the relevant aspects of Palmer’s (990) syntactic analysis of modal
auxiliary verbs. In specific terms, we analyse our data, applying the epistemic/deontic
modality in combination with Speech Act Theory.
3. data analysis. Shall is the most frequently used modal auxiliary verb in the constitution. As used in the constitution, shall has varied meaning, depending on the
linguistic context. Two broad uses can be identified. When the constitution’s aim is to
make a promulgation, the verb be is normally used:
Nigeria shall be a Federation consisting of states, and a Federal Capital Territory (Section 2(2))
In this section, the use of shall with the existential be automatically makes Nigeria a
Federation and makes the existence of a Federal capital Territory mandatory. In Section 3() too, we have:
There shall be 9 states in Nigeria, that is to say…
As a result of this section, and especially as a result of the co-occurrence of be with
the modal auxiliary shall, 9 states receive constitutional backing for their existence.
It is therefore plausible to say that shall, when used with be, brings a particular state
of affairs—abstract or concrete—into being.
The second use of shall in the constitution is to forbid some action or preventing a
resulting state of affairs. In this instance, not is normally used with shall. Since semantically, shall means insistence, compulsion or even permission, when it is used with
the negative element not, it prevents such meanings from coming into force. Examples of the use of not with shall abound in the 979 constitution. A good example is
found in Section (5)
For the purposes of Section (4) of this Section, a House of Assembly shall
not be deemed to be unable to perform its functions so long as the house of
Assembly can hold a meeting and transact business
In this extract, as in any other in which not is used with shall in a syntactic arrangement, the meaning to be derived is that of the prohibition of the act that is named.
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The constitution in this section prohibits the House of Assembly from being unable
to perform its function so long as it can meet and transact business. Not negates the
proposition and expresses an obligation not to act.
In terms of acts performed as a result of using shall in the constitution, three concurrent acts are performed:
(a) Deontic obligation/prohibition/promulgation
(b) Epistemic future
(c) Directive
In using shall the constitution is making an obligation either to vest in itself; or in a
third person, the reader as a citizen or an official of state certain powers. An example
is given in the following extract:
The state shall foster a feeling of belonging and of involvement among the
various peoples of the Federation, to the end that loyalty to the nation shall
override sectional loyalties (Section 5(43)).
Deontically, the state is placed under an obligation ‘to foster a feeling of belonging’.
The use of shall is therefore performantive in that it performs the act that it names—
that of fostering.
In a similar vein, shall performs an epistemic function, because it is virtually
impossible to prohibit an act in the past or promulgate an act retrospectively.
The constitution also performs a directive function. When shall is used in the constitution, the constitution desires that the listener do or perform a future act. It is roughly
equivalent to a command or a request by the constitution of the hearer of an act.
Can, on the other hand, is rarely used in legal documents and especially in the 979
constitution where it is used once. In this instance, can denotes the ability of the
House of Assembly to meet. That is, there is a prohibition on the state’s power to take
over a House of Assembly so long as it has the ability to meet and transact business.
Epistemically, can refers to a future time, as it is unlikely for the constitution to
refer to the ability of a House of Assembly to meet in the past.
The first use of may in the constitution is to grant permission. Pragmatically, the
constitution, which represents the power of the State, grants citizens rights which
suit their roles in the republic. Thus when may is used in some instances, permission
is granted. Two kinds of permission can be identified: compulsory and willing. In
compulsory permission the constitution grants a person or persons power which it is
mandatory for them to enforce:
The National Assembly may make laws for the Federation or any part thereof
with respect to the maintenance and securing of public safety…(Section ())
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A pragmatic perspective on the interpretation of modal verbs
377
The National Assembly is compulsorily permitted (i.e. required) to make such laws as
stipulated. The permission is not optional but compulsory, because making laws for
public safety is the primary function of the National Assembly. Under willing permission, the constitution grants individuals or bodies permission to enjoy certain rights
or privileges, if it is their desire to enjoy them. Section 25() is a good illustration of
this kind of permission.
Subject to the provisions of section 26 of this constitution, any person who is
qualified in accordance with the provisions of this section may apply to the
President for the grant of a certificate of nationalization.
In this instance, the individual who has the interest is granted leave to enjoy this right
by the constitution. This kind of permission involves no compulsion. It is important
to say that either of these kinds of permission is at the same time epistemic, since any
permission can only be given for the future. Permission is never retroactive.
The other use to which may is put in the constitution is to express possibility. This
function coincides with its normal everyday use.
Will is peculiar to oath taking in the constitution. And uniquely among the modals
studied, it has an ambivalent meaning. In one breath, it has its everyday ordinary usage,
which is either weak or strong volition (willingness). On the other hand, will has a
bidirectional meaning of insistence. That is, it involves both the speaker and the state.
The speaker insists, because pragmatically, there is a non-linguistic authority that compels or insists on the speaker performing that act which is named in his utterance.
Would, on the other hand, is a modal verb rarely used in legal and quasi-legal documents including the 979 constitution, where it appears only twelve times. It is used
when there is a remote possibility of occurrence. It is accompanied by be and have to
indicate what is probable in the future.
4. conclusion. From our analysis and discussion, it makes sense to conclude that
modal auxiliary verbs play more than just linguistic (synactic) roles in the constitution. They also play pragmatic roles as their use conveys meanings which impact
upon citizens and the polity.
By and large, our analysis shows that Palmer’s division of the modals into epistemic and deontic modals, attractive as it is as a syntactic instrument, is insufficient
to provide a pragmatic basis for understanding the properties of the modals which
only the context of use can properly explicate. There is, therefore, a need to combine
Palmer’s insight and previous related attempts with pragmatic insights for a proper
understanding of modal verbs in legal documents
It is therefore to be expected that a serious study of the syntactic structure of these
modals and their pragmatic interpretation would help in the understanding constitutional directives. This is what this research has set out to achieve.
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