De facto

De facto is a Latin expression that means "by [the] fact". In law, it means "in practice but not necessarily ordained by law" or "in practice or actuality, but without being officially established". It is commonly used in contrast to de jure (which means "concerning the law") when referring to matters of law, governance, or technique (such as standards) that are found in the common experience as created or developed without or contrary to a regulation. When discussing a legal situation, de jure designates what the law says, while de facto designates action of what happens in practice. It is analogous and similar to the expressions "for all intents and purposes" or "in fact".

The term de facto as of governments was created after the Argentine Constitution referred to illegal governments (governing bodies which Argentina did not acknowledge as individual nations) as de facto governments. The term de facto may also be used when there is no relevant law or standard, but a common and well established practice that is considered the accepted norm.

Examples

Segregation (during the United States' Civil Rights era)

'De facto' racial discrimination or segregation in the USA during the fifties and sixties 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 African Americans residing in the Southeastern USA. These laws were legally ended in 1964 by the Civil Rights Act of 1964. .

Continued practices of expecting African Americans to ride in the back of buses or to step aside onto the street if not enough room was present for a Caucasian person and "separate but equal" facilities are instances of de facto segregation. The NAACP fought for the de jure law to be upheld and for de facto segregation practices to be abolished

Standards

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 standardization process, and may not have an official standards document.

National languages

Several de facto English-speaking countries have no de jure official national language, such as Australia, the United Kingdom, and the United States. In addition, although the official language of Ireland is Irish, English is considered to be the 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. Japan is another example of a country with no language recognized de jure.

Lebanon and Morocco are two examples where the official language is Arabic but an additional de facto language is considered to be French.

Politics

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.

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 by deposing a previous leader or undermining the rule of a current one. De facto leaders need not hold a constitutional office, and may exercise power in an informal manner.

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 then 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 at an earlier date—during his time as vice president he exercised a great deal of power at the expense of the elderly, legal ruler, Ahmed Hassan al-Bakr.

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).

Some 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 near-total 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.

The term de facto head of state is sometimes used to describe the office of a governor general in the Commonwealth realms, since the holder of that office has the same responsibilities in their country as the de jure head of state (the sovereign) does war 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 elected Prime Minister and his 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 line of control in Kashmir 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 when the border was never formally established, or when 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.

Similarly, a nation with de facto independence, like Somaliland, is one that is not recognized by other nations or by international bodies, even though it has its own government that exercises absolute control over its claimed territory.

Other usages

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. (Similarly for related terms such as "oligopoly" and "monopsony".) This is the type of situation that antitrust laws are intended to eliminate, when they are used.

A domestic partner outside marriage is referred to as a de facto husband or wife by some authorities. In Australia and New Zealand, de facto has become a term for one's domestic partner. In Australian law, it is the legally recognized relationship of a couple living together (opposite-sex or same-sex). This is comparable to common-law marriage, which is used in most other English-speaking countries.

In Finances the World bank has a pertinent definition..

OP 7.30 - Dealings with De Facto Governments

These policies were prepared for use by World Bank staff and are not necessarily a complete treatment of the subject. OP 7.30 July, 2001

This Operational Policy statement was revised in August 2004 to reflect the term "development policy lending" (formerly adjustment lending), in accordance with OP/BP 8.60, issued in August 2004. Note: This OP 7.30 replaces OP 7.30, dated November 1994.Questions may be addressed to the Chief Counsel, Operations Policy.

1. 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.

See also

De jure

List of Latin phrases

References

Category:Latin legal terms