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The Modal
Shall, may, must — three words that distribute power and obligation across institutions and individuals with a consistency that is not accidental and not neutral
The passive voice and nominalization work by erasure — they remove agents and acts from the sentence. The modal verb works differently. It does not erase. It distributes. It assigns degrees of obligation and permission across the actors in an institutional document, determining who must do what, who may do what, and who has no grammatical standing to do anything at all. And the distribution, across the full corpus of American statutory and regulatory language, follows a pattern consistent enough to constitute a documented feature of institutional grammar: institutional powers are active and permissive; individual rights are passive and conditional.
"The Secretary may suspend the license of any holder found to be in violation." "The accused shall be afforded the opportunity to respond." Two sentences. Two modals. One actor is granted discretionary power in active voice — the Secretary may act, or not act, as judgment dictates. The other actor is granted a procedural right in passive voice — the accused shall be afforded something, by someone, under conditions the grammar does not specify. The modal force runs in opposite directions. The institutional actor has permission to exercise power. The individual actor has a right expressed as something that will be done to them.
This is modal asymmetry. It is the third mechanism in the grammar of authority — and it is, in some respects, the most precise. Where the passive and nominalization are blunt instruments of erasure, the modal is a precision tool. It can encode complex distributions of obligation and permission across multiple actors in a single document, creating a detailed map of who is bound and who is free, who acts and who receives, who commands and who is commanded — all within the grammatical structure of auxiliary verbs that most readers process without conscious attention.
The English modal system runs from absolute obligation through graduated permission to complete absence of obligation. In legal drafting, three modals do most of the work: "shall," "may," and "must." Their formal definitions in statutory construction are reasonably well-established — "shall" imposes a mandatory duty, "may" grants discretionary permission, "must" imposes an absolute requirement — but their distribution across institutional and individual actors in actual legal documents tells a different story than the formal definitions suggest.
The left column of that panel is discretionary power in active voice. The right column is conditional right in passive voice. The modal asymmetry and the voice asymmetry operate together: institutional actors receive "may" in active constructions — they are free to act as they judge appropriate. Individual actors receive "shall be" in passive constructions — something will be done for them, by someone, if the conditions are met. The grammar encodes the power differential before the substance of any specific right or power is defined.
The modal is where the grammar of authority becomes a map of the political. "May" for the institution. "Shall be afforded" for the individual. Three words. The entire structure of American administrative power encoded in the choice between them.
The Grammar of Authority · Series AnalysisWhat modal asymmetry converts, in practice, is the formal equality of rights and powers into a functional hierarchy that the grammar enforces before the law is ever applied. A statute may formally grant an individual the right to a hearing. But if that right is phrased as "the respondent shall be afforded an opportunity to request a hearing" while the agency's power to deny that hearing is phrased as "the Secretary may, in the Secretary's discretion, decline to hold a hearing where the Secretary determines that the request is without merit" — the modal structure has already encoded the outcome. The right is passive and conditional. The power is active and discretionary. The grammar has done the work of subordination before the substance is ever evaluated.
The insulation of modal asymmetry is the genuine legal distinction between powers and rights. Powers granted to administrative agencies are, by constitutional design, discretionary — the doctrine of prosecutorial discretion, the deference frameworks of Chevron and its successors, the political accountability rationale for executive branch flexibility all support institutional discretion that is not available to private individuals. The grammar reflects a real legal reality: agencies are supposed to have discretion. Individuals are supposed to have rights that can be procedurally vindicated. These are different things, and the modal grammar accurately encodes their difference.
The insulation holds up to a point. Where it stops holding is at the margin — the cases where the asymmetry is not a reflection of constitutional design but a drafting choice about how much procedural protection to build into individual rights provisions, and how much conditional language to attach to individual rights relative to the conditions attached to institutional powers. A right to a hearing conditioned on 30-day written request reflects a drafting choice about how burdensome the access condition should be. A power to compromise a penalty without any written findings requirement reflects a drafting choice about how much to constrain institutional discretion. Both choices are expressed in modal grammar. Neither is required by constitutional structure. Both are, at the level of the sentence, decisions about where the grammar of power runs.
Post V — The Shell — turns to the fourth and final mechanism: the defined term. Where the passive, the nominalization, and the modal all operate at the sentence level, the defined term operates at the document level — a black box inserted at the definitional section that carries an entire chain of command, a full distribution of authority, or a complex institutional structure inside a single capitalized word that subsequent sentences deploy without unpacking. The shell is the mechanism that makes long documents illegible by design while appearing to make them precise.
The analysis of modal verbs in legal language draws on established legal linguistics scholarship, including Peter Tiersma's Legal Language (1999), Bryan Garner's Guidelines for Drafting and Editing Statutes, and the work of the Uniform Law Commission on statutory drafting conventions. The formal definitions of "shall," "may," and "must" in statutory construction are documented in judicial interpretation across federal and state courts; the ambiguity of "shall" in particular has been extensively litigated, with some courts treating it as directory rather than mandatory. The Internal Revenue Code modal count is illustrative of a documented pattern in corpus analysis of tax law; the specific figure cited represents approximate usage documented in publicly available text of the Code and is offered as indicative rather than precisely verified. The administrative enforcement dissection specimen is a composite illustrating documented patterns in federal regulatory enforcement language; it is not a quotation from a specific identified regulation. The "symmetric rewrite" demonstrations are analytical tools showing what modal parity would look like in practice; they are not proposed regulatory language. The claim that institutional discretionary authority outnumbers individual rights grants in federal enforcement language by a consistent ratio is the series' analytical judgment grounded in documented patterns in legal linguistics research; precise ratio figures would require corpus analysis beyond the scope of this post.
