Rule of avoidance

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The rule of avoidance was a rule employed in the Sui Dynasty in China for the appointment of officials. 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.

Sui Dynasty[edit]

The rule of avoidance employed during the Sui Dynasty, and continued by subsequent Confucian governments, prohibited local officials from serving in their places of origin, so that family and friends would not influence them. 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[edit]

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. 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[edit]

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.

Rules for Judicial Self-Restraint and Avoiding Constitutional Questions[edit]

Justice Louis D. Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), summarized some prudential rules for exercising judicial self-restraint and avoiding ruling on the constitutionality of congressional legislation:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

  1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, 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."[1]
  2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it."[2] "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."[3]
  3. 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."[2]
  4. The Court will not pass 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. This rule has found most varied application. Thus, if 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. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.
  5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right to challenge to one who lacks a personal or property right. (While not mentioned in Ashwander, there are exceptions in the case of a First Amendment challenge where the party may raise the effect of a law on other person's First Amendment rights, the so-called "chilling effect" doctrine.)
  6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. "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 management of the statute is fairly possible by which the question may be avoided."[4]

Irish Law[edit]

This principle is also used in Irish law: see Carmody v Minister for Justice.[1]

See also[edit]


  1. ^ Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339 (1892)
  2. ^ a b Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 U.S. 33 (1885)
  3. ^ Burton v. United States, 196 U.S. 283 (1905)
  4. ^ Crowell v. Benson, 285 U.S. 22 (1932)