Rule of avoidance

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The rule of avoidance was a rule employed typically in states with centralized government system which prohibited local officials from serving in their places of origin, so that family and friends would not influence them and prevent local separatism.

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The system was originated in Han dynasty of China and has persisted into modern times. A system similar to this was adopted by Emperor Akbar of the Mughal Empire to prevent corruption and favoritism. It is also an entirely different principle in United States constitutional law, and a cultural norm in some cultures that promotes exogamy.

China

The rule of avoidance employed during the Han dynasty, and persisted through various subsequent dynasties and continues to influence the appointment of local government leaders in the People’s Republic of China and the Chinese Communist Party, prohibited local officials from serving in their places of origin, so that family and friends would not influence them and prevent the potential separatism movement. [1] Terms of service were for only three or four years, and parents and sons over fifteen could not accompany officials. Each prefecture sent delegates to an annual court assembly. This practice would continue through to the end of the Qing dynasty.

Mughal Empire

In the time of Emperor Akbar of the Mughal Empire (in the area of what is now India, Pakistan and Afghanistan), a system similar to this was put into place to ensure smooth running of government and to prevent corruption.[ citation needed ] Government officials were not allowed to serve in one jurisdiction for long so that they did not become too involved in local affairs and become stronger than the Emperor himself. After a period of time, employees of the Emperor were transferred and jurisdiction of service was thus rotated regularly. The implementation of this system in the Empire by Akbar helped in preventing corruption and favoritism. This method was discarded and forgotten by the later Emperors.

United States law

The rule of avoidance employed by the United States Supreme Court is a principle called Ashwander rules, settled in Ashwander v. TVA (297 US 288, 346-347 (1936)), that where a controversy may be settled on a platform other than one involving constitutional adjudication, the court should avoid the constitutional question. It was articulated by Justice Louis D. Brandeis, are a set of principles used by the United States Supreme Court for avoiding constitutional rulings.

Irish law

This principle is also used in Irish law: see Carmody v Minister for Justice.

Related Research Articles

<span class="mw-page-title-main">Constitutional avoidance</span> United States judicial doctrine

Constitutional avoidance is a legal doctrine of judicial review in United States constitutional law that dictates that United States federal courts should refuse to rule on a constitutional issue if the case can be resolved without involving constitutionality. In Ashwander v. Tennessee Valley Authority (1936), the Supreme Court of the United States established a seven-rule test for the justiciability of controversies presenting constitutional questions:

  1. Collusive lawsuit rule: The Court will not [rule] upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."
  2. Ripeness: The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it."
  3. Minimalism: The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."
  4. Last resort rule: The Court will not [rule] upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. ... [I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
  5. Standing; Mootness: The Court will not [rule] upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
  6. Constitutional estoppel: The Court will not [rule] upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. Constitutional avoidance canon: "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."

References

  1. 胡萧力 (2016). "从"地域回避"到"利益回避"". 中外法学. 北京大學法學院.