De Facto Forensic

Much has been written in recent years about the beauty of so-called “Plain English” Drafting.  It is said in some quarters to be the panacea of almost all ills with and within the law. Without reservation, I agree that clear and concise drafting is an admirable goal.  However so-called “Plain English” Drafting can never excuse poor or incorrect use of language.  The English language may be fluid and able to adapt with the times and current usage, but even a fluid creation needs some structure and rules.  Bad is bad and wrong is wrong; and no fancy advertising or label can change the core truth in that regard.

Two examples of this misuse of language in the modern legal world are the use and misuse of the words “de facto” and “forensic”.

De Facto
The Macquarie Dictionary defines de facto as an adjective deriving from Latin: from the fact and as having the following meanings:
1     In fact; in reality.
2     Actually existing, whether with or without right.

Much use is made of the words or phrase “de facto” when speaking of a relationship.  In that regard the Macquarie Dictionary goes on to give the following examples:
de facto wife – a woman who lives with a man as his wife, but is not married to him.
de facto husband – a man who lives with a woman as her husband, but is not married to her.

It can be clearly seen in the above context that the relationship is never in question, merely the status of the marriage aspect of the relationship.  The relationship question ought be: Is it a true marriage or is it merely a de facto marriage?  I do not say one relationship type is better or worse than the other, merely if a word or phrase is to be used, it should be used properly.  If the relationship is a true marriage relationship, state it to be so.  If the relationship has not been formalised by a ceremony where the parties exchange vows etc, then the relationship can only be said to be a de facto marriage relationship.  Calling a de facto marriage relationship a de facto relationship is wrong grammatically, linguistically and factually.  It is the marriage aspect of the phrase that seeks modification or qualification by the adjective “de facto”, not the relationship aspect.

Forensic
My other example is the word forensic.  The Collins English Dictionary defines this word as an adjective which derives from the Latin  forens(is) of the forum + _ic and has the following meaning:
– Relating to, used in, or connected with a court of law.

The American Heritage® Dictionary of the English Language, Fourth Edition adds:
– Of, relating to, to or used in debate or argument; rhetorical.
– Relating to the use of science or technology in the investigation and establishment of facts or evidence in a court of law.

Police officers, scenes of crime personnel and scientists do not collate forensic evidence or put more plainly evidence evidence.  The evidence they seek is scientific and the scientists etc who do the hard work in compiling and processing that type of evidence should be given credit accordingly.

Inclusion of the incorrect use of language in legislation does not support the contention for the validity of that use of the language. Mere repetition of the error cannot and does not cure its invalidity.

My Grade Ten (10) English teacher told the class that if we each take the time to learn the language properly, we all benefit.  That benefit will be not just from our own endeavours, but from those with whom we interact.  In my respectful opinion my English teacher was correct in his theory.

As allegedly educated members of the community who use language as a tool of trade, lawyers should do a much better job to ensure that we use our language correctly.