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De facto

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For other uses, see De facto (disambiguation).

In law and government, de facto (/deɪ ˈfæktoʊ/ or /di ˈfæktoʊ/;[1] Template:Lang-la, ‘in fact’; Latin pronunciation: [deː ˈfaktoː]) describes practices that exist in reality, even if not officially recognised by laws.[2][3][4] It is commonly used to refer to what happens in practice, in contrast with de jure (’in law’), which refers to things that happen according to law. Unofficial customs that are widely accepted are sometimes called de facto standards.

Examples

Standards

Main article: De facto standard

A de facto standard is a standard (formal or informal) that has achieved a dominant position by tradition, enforcement, or market dominance. It has not necessarily received formal approval by way of a standardisation process, and may not have an official standards document.

Technical standards are usually voluntary, like ISO 9000 requirements, but may be obligatory, enforced by government norms, like drinking water quality requirements. The term "de facto standard" is used for both: to contrast obligatory standards (also known as "de jure standards"); or to express a dominant standard, when there is more than one proposed standard.

In social sciences, a voluntary standard that is also a de facto standard, is a typical solution to a coordination problem.[5]

National languages

Several countries, including Australia, Japan, Mexico, the United Kingdom and the United States, have a de facto national language but no official, de jure national language.

Some countries have a de facto national language in addition to an official language. In Lebanon and Morocco the official language is Arabic, but an additional de facto language is also French. In New Zealand, Maori and New Zealand Sign Language are de jure official languages, while English is a de facto official language. In Singapore, English is the de jure language, but Chinese is the common de facto language.

Russian was the de facto official language of the central government and, to a large extent, republican governments of the former Soviet Union, but was not declared de jure state language until 1990. A short-lived law effected April 24, 1990, installed Russian as the sole de jure official language of the Union.[6]

Politics

Further information: De facto state and De facto embassy

A de facto government is a government wherein all the attributes of sovereignty have, by usurpation, been transferred from those who had been legally invested with them to others, who, sustained by a power above the forms of law, claim to act and do really act in their stead.[7]

In politics, a de facto leader of a country or region is one who has assumed authority, regardless of whether by lawful, constitutional, or legitimate means; very frequently, the term is reserved for those whose power is thought by some faction to be held by unlawful, unconstitutional, or otherwise illegitimate means, often because it had deposed a previous leader or undermined the rule of a current one. De facto leaders sometimes do not hold a constitutional office and may exercise power informally.

Not all dictators are de facto rulers. For example, Augusto Pinochet of Chile initially came to power as the chairperson of a military junta, which briefly made him de facto leader of Chile, but he later amended the nation's constitution and made himself president for life, making him the formal and legal ruler of Chile. Similarly, Saddam Hussein's formal rule of Iraq is often recorded as beginning in 1979, the year he assumed the Presidency of Iraq. However, his de facto rule of the nation began earlier: during his time as vice president, he exercised a great deal of power at the expense of the elderly Ahmed Hassan al-Bakr, the de jure president.

In Argentina, the successive military coups that overthrew constitutional governments installed de facto governments in 1930–1932, 1943–1946, 1955–1958, 1966–1973 and 1976–1983, the last of which combined the powers of the presidential office with those of the National Congress. The subsequent legal analysis of the validity of such actions led to the formulation of a doctrine of the de facto governments, a case law (precedential) formulation which essentially said that the actions and decrees of past de facto governments, although not rooted in legal legitimacy when taken, remained binding until and unless such time as they were revoked or repealed de jure by a subsequent legitimate government.

That doctrine was nullified by the constitutional reform of 1994. Article 36 states:

  • (1) This Constitution shall rule even when its observance is interrupted by acts of force against the institutional order and the democratic system. These acts shall be irreparably null.
  • (2) Their authors shall be punished with the penalty foreseen in Section 29, disqualified in perpetuity from holding public offices and excluded from the benefits of pardon and commutation of sentences.
  • (3) Those who, as a consequence of these acts, were to assume the powers foreseen for the authorities of this Constitution or for those of the provinces, shall be punished with the same penalties and shall be civil and criminally liable for their acts. The respective actions shall not be subject to prescription.
  • (4) All citizens shall have the right to oppose resistance to those committing the acts of force stated in this section.
  • (5) He who, procuring personal enrichment, incurs in serious fraudulent offense against the Nation shall also attempt subversion against the democratic system, and shall be disqualified to hold public office for the term specified by law.
  • (6) Congress shall enact a law on public ethics which shall rule the exercise of public office.

In 1526, after seizing power Imam Ahmad ibn Ibrahim al-Ghazi made his brother, Umar Din, the de jure Sultan of the Adal Sultanate. Ahmad, however, was in all practice the de facto Sultan.[8] Some other notable true de facto leaders have been Deng Xiaoping of the People's Republic of China and General Manuel Noriega of Panama. Both of these men exercised nearly all control over their respective nations for many years despite not having either legal constitutional office or the legal authority to exercise power. These individuals are today commonly recorded as the "leaders" of their respective nations; recording their legal, correct title would not give an accurate assessment of their power. Terms like strongman or dictator are often used to refer to de facto rulers of this sort. In the Soviet Union, after Vladimir Lenin was incapacitated from a stroke in 1923, Joseph Stalin—who, as General Secretary of the Communist Party had the power to appoint anyone he chose to top party positions—eventually emerged as leader of the Party and the legitimate government. Until the 1936 Soviet Constitution officially declared the Party "...the vanguard of the working people", thus legitimising Stalin's leadership, Stalin ruled the USSR as the de facto dictator.

Another example of a de facto ruler is someone who is not the actual ruler but exerts great or total influence over the true ruler, which is quite common in monarchies. Some examples of these de facto rulers are Empress Dowager Cixi of China (for son Tongzhi and nephew Guangxu Emperors), Prince Alexander Menshikov (for his former lover Empress Catherine I of Russia), Cardinal Richelieu of France (for Louis XIII) and Queen Marie Caroline of Naples and Sicily (for her husband King Ferdinand I of the Two Sicilies).

The term "de facto head of state" is sometimes used to describe the office of a governor general in the Commonwealth realms, since a holder of that office has the same responsibilities in their country as the de jure head of state (the sovereign) does within the United Kingdom.

In the Westminster system of government, executive authority is often split between a de jure executive authority of a head of state and a de facto executive authority of a prime minister and cabinet who implement executive powers in the name of the de jure executive authority. In the United Kingdom, the Sovereign is the de jure executive authority, even though executive decisions are made by the indirectly elected Prime Minister and her Cabinet on the Sovereign's behalf, hence the term Her Majesty's Government.

The de facto boundaries of a country are defined by the area that its government is actually able to enforce its laws in, and to defend against encroachments by other countries that may also claim the same territory de jure. The Durand Line is an example of a de facto boundary. As well as cases of border disputes, de facto boundaries may also arise in relatively unpopulated areas in which the border was never formally established or in which the agreed border was never surveyed and its exact position is unclear. The same concepts may also apply to a boundary between provinces or other subdivisions of a federal state.

Segregation

In South Africa, although de jure apartheid formally began in 1948, de facto racist policies and practices discriminating against black South Africans, Coloureds, and Indians dated back decades before.[9][10][11][12][13][14][15][16][17][18][19][20]

De facto racial discrimination and segregation in the United States until the 1950s and 1960s was simply discrimination that was not segregation by law (de jure). "Jim Crow laws", which were enacted in the 1870s, brought legal racial segregation against black Americans residing in the American South. These laws were legally ended in 1964 by the Civil Rights Act of 1964.[21][22][23]

Other uses

A de facto monopoly is a system where many suppliers of a product are allowed, but the market is so completely dominated by one that the others might as well not exist. The related terms oligopoly and monopsony are similar in meaning and this is the type of situation that antitrust laws are intended to eliminate.

Relationships

A domestic partner outside marriage is referred to as a de facto husband or wife by some authorities.[24] In Australia and New Zealand, the phrase "de facto" by itself has become a colloquial term for one's domestic partner.[25] In Australian law, it is the legally recognized, committed relationship of a couple living together (opposite-sex or same-sex).[26] De facto unions are defined in the federal Family Law Act 1975.[27] De facto relationships provide couples who are living together on a genuine domestic basis with many of the same rights and benefits as married couples. Two people can become a de facto couple by entering into a registered relationship (i.e.: civil union or domestic partnership) or by being assessed as such by the Family Court or Federal Circuit Court.[28] Couples who are living together are generally recognised as a de facto union and thus able to claim many of the rights and benefits of a married couple, even if they have not registered or officially documented their relationship,[29] although this may vary by state. It has been noted that it is harder to prove de facto relationship status, particularly in the case of the death of one of the partners.[30]

In April 2014, a federal court judge ruled that a heterosexual couple who had a child and lived together for 13 years were not in a de facto relationship and thus the court had no jurisdiction to divide up their property under family law following a request for separation. In his ruling, the judge stated "de facto relationship(s) may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally."[31]

The above sense of de facto is related to the relationship between common law traditions and formal (statutory, regulatory, civil) law, and common-law marriages. Common law norms for settling disputes in practical situations, often worked out over many generations to establishing precedent, are a core element informing decision making in legal systems around the world. Because its early forms originated in England in the Middle Ages, this is particularly true in Anglo-American legal traditions and in former colonies of the British Empire, while also playing a role in some countries that have mixed systems with significant admixtures of civil law.

Relationships not recognised outside Australia

Due to Australian federalism, de facto partnerships can only be legally recognised whilst the couple lives within a state in Australia. This is because the power to legislate on de facto matters relies on referrals by States to the Commonwealth in accordance with Section 51(xxxvii) of the Australian Constitution, where it states the new federal law can only be applied back within a state.[32][33] There must be a state nexus between the de facto relationship itself and the Australian state.[34]

If an Australian de facto couple moves out of a state, they do not take the state with them and the new federal law is tied to the territorial limits of a state. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the laws of the country where they are ordinarily resident. See the section on Family Court of Australia for further explanation on jurisdiction on de facto relationships.

This is unlike marriage and "matrimonial causes" which are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia[35] and internationally by marriage law and conventions, Hague Convention on Marriages (1978).[36]

Non-marital relationship contract

A de facto relationship is comparable to non-marital relationship contracts (sometimes called "palimony agreements") and certain limited forms of domestic partnership, which are found in many jurisdictions throughout the world.

A de facto Relationship is not comparable to common-law marriage, which is a fully legal marriage that has merely been contracted in an irregular way (including by habit and repute). Only nine U.S. states and the District of Columbia still permit common-law marriage; but common law marriages are otherwise valid and recognised by and in all jurisdictions whose rules of comity mandate the recognition of any marriage that was legally formed in the jurisdiction where it was contracted.

Family law – custody

De facto joint custody is comparable to the joint legal decision-making authority a married couple has over their child(ren) in many jurisdictions (Canada as an example). Upon separation, each parent maintains de facto joint custody, until such time a court order awards custody, either sole or joint.[37]

Other uses of the term

In finance, the World Bank has a pertinent definition:

A "de facto government" comes into, or remains in, power by means not provided for in the country's constitution, such as a coup d'état, revolution, usurpation, abrogation or suspension of the constitution.[38]

A de facto state of war is a situation where two nations are actively engaging, or are engaged, in aggressive military actions against the other without a formal declaration of war.

In engineering, de facto technology is a system in which the intellectual property and know-how is privately held. Usually only the owner of the technology manufactures the related equipment. Meanwhile, a standard technology consists of systems that have been publicly released to a certain degree so that anybody can manufacture equipment supporting the technology. For instance, in cell phone communications, CDMA1X is a de facto technology, while GSM is a standard technology.

See also

References

  1. ^ Random House Kernerman Webster's College Dictionary. S.v. "de facto." Retrieved January 12, 2018 from https://www.thefreedictionary.com/de+facto
  2. ^ "de facto". Dictionary.com. Retrieved 25 February 2017.
  3. ^ See I. 3. "de". Oxford English Dictionary (2nd ed.). Oxford University Press. 1989.
  4. ^ Harper, Douglas. "de facto". Online Etymology Dictionary.
  5. ^ Edna Ullmann-Margalit: The Emergence of Norms, Oxford Un. Press, 1977. (or Clarendon Press 1978)
  6. ^ "USSR Law "On the Languages of the Peoples of USSR"" (in Russian). April 24, 1990. Archived from the original on 2009-06-18. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  7. ^ 30 Am Jur 181. Law Dictionary, James A. Ballentine, Second Edition, 1948, p. 345.
  8. ^ "Aḥmad Grāñ". Encyclopædia Britannica, Inc. Retrieved 2014-05-04.
  9. ^ R.W Lee. "Introduction to Roman-Dutch Law". Oxford, Clarendon Press. Retrieved 27 March 2011.
  10. ^ A. Du Toit, H.B. Giliomee (1983). Afrikaner political thought: analysis and documents. University of California Press. ISBN 978-0-520-04319-0.
  11. ^ Gish, Steven (2000). Alfred B. Xuma: African, American, South African. New York University Press. p. 8.
  12. ^ Hoiberg, Dale; Ramchandani, Indu (2000). Students' Britannica India, Volumes 1–5. Popular Prakashan. p. 142.
  13. ^ Allen, John (2005). Apartheid South Africa: An Insider's Overview of the Origin And Effects of Separate Development. iUniverse. p. xi.
  14. ^ Nojeim, Michael J. (2004). Gandhi and King: the power of nonviolent resistance. Greenwood Publishing Group. p. 127.
  15. ^ Leach, Graham (1986). South Africa: no easy path to peace. Routledge. p. 68.
  16. ^ Tankard, Keith (9 May 2004). Chapter 9 The Natives (Urban Areas) Act Archived 20 November 2008 at the Wayback Machine . Rhodes University. knowledge4africa.com.
  17. ^ Baroness Young – Minister of State, Foreign and Commonwealth Office (4 July 1986). South Africa House of Lords Debate vol 477 cc1159-250. Hansard.
  18. ^ The Representation of Natives Act. sahistory.org Archived 13 October 2006 at the Wayback Machine
  19. ^ Reddy, E.S (n.d.). "Indian passive resistance in South Africa, 1946–1948". sahistory.org.za. SA History. Retrieved 23 February 2015.
  20. ^ Ambrosio, Thomas (2002). Ethnic identity groups and U.S. foreign policy. Greenwood Publishing Group. pp. 56–57.
  21. ^ Civil Rights Act of 1964
  22. ^ Woodward, C. Vann; McFeely, William S. (2001). The Strange Career of Jim Crow. New York: Oxford University Press. p. 7. ISBN 0-19-514689-1.
  23. ^ King, Desmond (1995). Separate and Unequal: Black Americans and the US Federal Government. New York: Oxford University Press. p. 3. ISBN 0-19-828016-5.
  24. ^ Walker Lenore E. "Battered Woman Syndrome. Empirical Findings." Violence and Exploitation Against Women and Girls, November 2006, p. 142.
  25. ^ Gulliver, Katrina (31 January 2003). "De facto is a defective description – just say living in sin". Sydney Morning Herald. Retrieved 29 August 2016. I am curious about the use of the term "de facto". It is an adjective meaning "in fact" – as opposed to "in law". It is used by Australian journalists when describing (other people's) domestic partners. I have never heard anyone say "my de facto". It is a brief way of saying "living with someone but not actually married". Despite being an adjective, it never seems to be used with a noun, but on its own...
  26. ^ "What are your rights when a de facto relationship ends?". ABC News. 22 June 2017. Retrieved 16 September 2017.
  27. ^ "Family Law Act 1975 – Sect. 4AA". austlii.edu.au.
  28. ^ "De facto Relationships". Family Court of Australia.
  29. ^ "De facto Relationships". The Law Society of New South Wales. Archived from the original on 2017-02-10. Retrieved 2017-09-16. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  30. ^ Elphick, Liam. "Do same-sex couples really have the same rights as married couples?". SBS News. Retrieved 15 September 2017.
  31. ^ "De facto couples have differences to married counterparts, judge says". The Australian. 23 April 2014.
  32. ^ French, Justice (Feb 2003). "The Referral of State Powers Cooperative Federalism lives?". Western Australia Law Review..
  33. ^ Thomas (2007) 233 CLR 307, [208] (Kirby J).
  34. ^ See sections 90RG, 90SD and 90SK, section 90RA, of the Family Law Act.
  35. ^ Section 51, Australian Constitution
  36. ^ Hague Convention on Marriages 1978
  37. ^ http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf What you should know about Family Law in Ontario
  38. ^ "OP 7.30 – Dealings with De Facto Governments". Operational Manual. The World Bank. July 2001. Retrieved 2010-11-28.
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