Category: International Law

Bill 96: A Violation of English-speaking Rights in Québec

Sidney Singer

In Canada there are multiple pieces of legislation that protect the rights of citizens to live their lives in one of the two official languages, English or French. The earliest, the British North America Act in 1867, implemented French and English as official languages of the parliament, followed by the Official Languages Act in 1969, and the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter of Rights and Freedoms specifically pertains to education and holds that Canadian citizens have a right to be educated in either English or French. In June 2022, Bill 96 was passed in the Canadian Province of Québec. The bill states that its purpose is “to affirm that the only official language of Québec is French.” It also affirms that French is the common language of the Québec nation.” However, I argue that Bill 96 is unconstitutional under Section 23 of the Canadian Charter of Rights and Freedoms, due to enrollment caps placed on English language schools. 

The bill also targets Quebec’s English language educational system, placing caps on the amounts of students permitted in each of the “English-language institutions providing college instruction” at the Minister of Higher Education, Research, Science and Technology’s discretion. The Bill further states that the total number of English-language students cannot exceed 17.5% of the French-language student population, and that the proportion of English and French students must stay the same from year to year.

Immediately after the passage of Bill 96, the English Montreal School Board (EMSB) voted to challenge the bill, with spokesperson Joe Ortona for the EMSB saying that “I’m ready to stand up and fight as an English-language school board and an English-language institution and to stand up for these rights that the government has decided they can throw out the window.”

The EMSB challenge to Bill 96 specifically cited Section 23 of the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter is as follows:

  1. Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. 

In other words, Section 23 of the Charter of Rights and Freedoms guarantees that if a parent is educating one child in their family in either English or French, they have the right to have all their children receive their instruction in that language. However, what happens if one child is enrolled in an English language school, but due to enrollment caps, their sibling is unable to enroll? Such a scenario would directly violate section 23 subsection 2 of the Charter, which states that “the right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province.” 

 Association des Parents ayants droit de Yellowknife et al. v Attorney General of the Northwest Territories et al., a 2012 case in Canadian Supreme Court of the Northwest Territories, is particularly pertinent as it dealt with the number of students in Yellowknife that had the right to attend Francophone schools. The court looked at census data, determined that there were around 500 eligible students that could attend francophone schools, and concluded that “the capacity of the minority school had to be increased to take into account the number of students it may have to accommodate in the future. The capacity of the school had to be between that number and the existing demand.” 

This decision was decided under section 23 of the Charter, due to the fact that all children who had the right to minority-language education needed to be able to have a place in the French schools if they so wished. Yet the court’s ruling quite clearly contradicts the recent cap on English Language student enrollment in Quebec under Bill 96. If minority language schools must “take into account the number of students it may have to accommodate,” the action of capping enrollment for minority language institutions is directly contradictory.

The Case of Bill 96 is an interesting inversion of the usual fight for language rights within Canada, wherein French is most often the minority language. However, the reversal of the roles of English and French does not mean that they can be treated differently under the constitution, which aims to protect the rights of English and French speakers equally. Just as all children who have the right to be educated in French must be afforded the right to attend school, all children who have the right to an English language education must be treated the same. 

Directly looking at the rights entrenched in the Charter of Rights and Freedoms, it is evident that the proposed enrollment caps on English language institutions and instruction in Quebec is unconstitutional. If all citizens have the right to receive an education in their first language, the idea that one can cap the enrollment in certain language schools will force students to abandon their charter rights to receive an education. If there are more students who qualify for English education than there are spots for enrollment, the constitutional rights of these students to receive an English language education, if they so desire, are being violated. 

The Weight of Putin’s Arrest Warrant and What’s To Come

Natalia Lalin

On March 17, the international community was stunned by the significant move made by the International Criminal Court to issue an arrest warrant for Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Lvova-Belova. The two are charged with orchestrating the systematic abduction and transportation of at least 6,000 children from occupied cities in Ukraine to Russia by means of re-education camps located throughout the country from the Black Sea all the way to Siberia, or through adoption by Russian families. Lvova-Belova herself even recently adopted a 15-year-old child from Ukraine. This act by the Court was the first form of international legal action taken in the context of the Russia-Ukraine War since its start in February 2022, and it is a symbolic acknowledgment of the gravity of the Russian government’s crimes and actions in this aggressive dispute. It is also particularly notable for condemning Putin, an acting leader of a world superpower. While he is not the first sitting head of state to be indicted by the International Criminal Court (referred to hereafter as the ICC), as three other leaders have been charged previously, it is the first time the ICC has taken this action against the leader of a Permanent Five member of the United Nations Security Council. Former heads of state Slobodan Milošević of Yugoslavia, Charles Taylor of Liberia, and Ratko Mladić of Bosnia and Herzegovina have all been previously indicted and tried at the Hague while in their positions of power. 

Despite all of this, it seems Russian officials are shrugging off the indictment. Kremlin spokesperson Dmitry Peskov proclaimed that “the very question itself is outrageous and unacceptable. Russia, like a number of other states, does not recognize the jurisdiction of this court, and therefore any of its decisions are insignificant for the Russian Federation from a legal viewpoint.” Further, a Russian Investigative Committee even opened up a retaliatory criminal case against ICC prosecutor Karim Khan and the three judges that made this judgment, claiming that their hostile actions were not just illegal, but also a purely political “attack on a representative of a foreign state enjoying international protection, in order to complicate international relations.”

Exploring the Legality of the Arrest Warrants

To better understand the origins of this debate on the legality of the arrest warrants, it is important to review the fundamentals of the ICC itself. The court was created through the Rome Statute, which the United Nations General Assembly adopted in 1998 to end legal impunity for the world’s most severe crimes. The court has official jurisdiction over cases involving genocide, grave war crimes, crimes against humanity, and crimes of aggression. Its jurisdiction is limited to the 123 countries which signed on to the Statute, totaling about two-thirds of the international community. This group famously excludes Russia, the United States, and China, amongst others. Even Ukraine is not a member country of the ICC at this time.

Nevertheless, this alone does not completely protect Putin or Lvova-Belova from the ICC’s reach: it only means Russia does not have to comply with the investigation. Nevertheless, if they were to travel to any of the countries party to the Rome Statute, the countries would be obligated to arrest them and hand them over to the ICC, where they would then be tried for their crimes at The Hague. 

 The charges have legal footing because Putin and Lvova-Belova are being accused of breaching the Genocide and Geneva Conventions, which Russia actually has signed onto. According to Article 49(1) of the Fourth Geneva Convention, the “forcible transfer or deportation of civilians, including children, is prohibited.” If given a chance, the ICC will prosecute Putin for his direct or joint involvement in these acts under Article 25(3)(a) of the Rome Statute or his failure to exercise control over subordinates who committed these acts under Article 28(b) of the Rome Statute. On the other hand, Lvova-Belova will only be prosecuted for the first accusation of involvement under Article 25(3)(a). While the ICC does not employ the death penalty, the penalty for these charges may include a life sentence.

While these crimes are currently categorized as war crimes, some speculate that they could eventually amount to crimes against humanity or even genocide, depending on Russian intention. The case would be very different if the children were transported to keep them safe rather than if Russia transported them in an attempt to wipe out the next generation of Ukrainians, as some claim. 

Feasibility of Actually Seeing Putin Behind Bars

The legality of these charges and the feasibility of a trial in the near future are two different things, mainly because Putin and Lvova-Belova cannot be tried in absentia. The ICC also has no real enforcement mechanism or police force to arrest them. So, if they are to be tried, the ICC is entirely dependent on other countries to hand them over. Otherwise, the trial will not happen. This reliance on catching Putin and Lvova-Belova while they are traveling internationally decreases the possibility of prosecution ever happening because the geographic borders of where they can and cannot go are so explicitly defined. Presumably, Putin would not be so foolish as to travel to a country where he knows he will be immediately handcuffed. This situation is also unprecedented because every other comparable case has involved a sitting head of state of a country that was a member of the ICC. Ultimately, given the implausibility of either Putin or Lvova-Belova facing real legal punishment, I believe that these indictments are key more so in their symbolism than in their potential to convict Russian leadership. 

However, it is important to note that even if they are primarily symbolic in nature, these arrest warrants have major potential to effect tangible change. First of all, the nature of the ICC’s decision to make the announcement public is effective on many levels, especially since the institution does not normally publicize arrest warrants to protect its investigations. Nevertheless, this decision to go public seemed to differentiate this case from the traditional procedure in an effort to deter the progression of the Russia-Ukraine War. Internationally, the ICC is declaring its intent to hold Russia accountable through this and potentially future charges, despite this country’s power. These future charges may be related to aerial bombardment campaigns or attacks on hospitals and other forms of civilian infrastructure, for which Russia must answer. Minimizing Putin’s geographic borders by limiting which countries he can travel to may also make it more challenging to conduct diplomatic affairs and matters of the state. Domestically, the public announcement was a strategic move to instill fear in subordinate Russian officials who were implicit in this and other harmful acts. They may now express more resistance knowing that they too can be charged for grave war crimes, just as Lvova-Belova has been. This also could affect the Russian public by making them aware of the exact tactics being used by their government, which could drum up domestic opposition to the war. 

More broadly, these arrest warrants have also reinvigorated conversations around the US’s lack of involvement with the ICC. It may even make other powerful countries reconsider their choice not to partner with the international institution if they really do want to see international justice realized. It also warns other human rights violators, like China, that their actions will not go unnoticed. Globally, these arrest warrants seem to have potentially increased the ICC’s credibility at a time when it was nearing a legitimacy crisis which could be definitively marked, amidst many years of debate, by the decision of the African Union in 2017 to explore the concept of collectively withdrawing from the institution. Nevertheless, in light of the ICC’s willingness to take such a strong stance against a powerful country and a war that has affected the entire international community, perhaps these countries will reconsider.  

Concluding Remarks 

In conclusion, despite the debate around the legality behind Putin’s arrest warrants and claims by Russia that the ICC is illegitimate in its actions, it is seemingly more legitimate than ever. Unfortunately, due to the limitations of the Court, it seems unlikely that we will see Putin behind bars anytime soon; however, these arrest warrants were necessary for sending a message to Russia and initiating the often lengthy process required for international justice. As stated by Payam Akhavan, a former UN Prosecutor, “We have to bear in mind that although the famous expression is that oftentimes justice delayed is justice denied, in international criminal justice, justice delayed very often is justice delivered because those in power today may not be in power tomorrow.” Hopefully, in due time, the world can look back at Putin’s arrest warrant as the catalyzing legal action that delivered widespread justice to the Ukrainian people and the world at large.

Man v. Machine: Social and Legal Implications of Machine Translation

Cecilia Quirk

Introduction

In a predominantly English-speaking country such as the United States, it can be easy to take for granted the essential relationship between the arts of law and translation. Yet, as David Bellos notes in Is That a Fish in Your Ear?: Translation and the Meaning of Everything, legal texts are translated in much greater quantities than typical literature, and interestingly, in more complex and various directions. Not only is the translation of law from one language to another “a prerequisite for the construction and maintenance of a global society,” as Bellos puts it, legal writing is already an act of translation in and of itself. Law in English, for instance, isn’t really English at all anymore; legal language often takes on different connotations from common parlance and is frequently an amalgamation of clearly non-English terms. The self-referential and essentially enclosed language of the law is what leads Bellos to conclude that it is inherently untranslatable, though by necessity the object of much translation. 

As the future of legal translation undoubtedly lies–at least in part–in machine translation (MT), there is potential for valuable increased efficiency as much as costly detours: instances of “getting lost in translation.” In order to understand what increased adoption of MT means for the legal world, particularly in the United States, it is important to look back on the history of US Legal Translation, to look across the Atlantic to the complex yet streamlined translation infrastructure practiced by the European Union, and look to the future as cases regarding MT use at our southern border are beginning to cause courts to consider the implications of MT on consent.  

US Legal Translation 

Louisiana

Even before the enhanced globalization of the 20th and 21st centuries, the United States, perhaps surprisingly, already had a rich history of legal translation, particularly in Louisiana. In fact, Louisiana’s first constitution was written in French before it was translated to English, although it held that both versions had equal authority. This system of enacting English and French laws of equal authority remained in place for 35 years until the state’s second constitution, in 1845, held only English law to be official in the future as Lousianna became a state. For this reason, the Civil Code of 1870 appeared in only English, though the issue of conflicting translations remained. Conflicts in translation can arise for numerous reasons: from outright mistakes, ambiguities arising from the structure of a language, or from the fact that  there often is no such thing as a perfect match from one word to another between languages (Bermann 91-93). For instance, Shelp v. National Surety Corporation, a case regarding whether a lessor was obligated to repair doors on his leased property, dealt with a discrepancy between the Article 2716 of the Civil Code of 1870, which appeared only in English, and its parallel in the French-language provision of the 1825 code: 

“The repairs which must be made at the expense of the tenant are those which, during the 

lease, it becomes necessary to make … [notably] to windows, shutters, partitions, shop 

windows, locks and hinges, and everything of that kind, according to the custom of the 

Place.”

The 1825 French version, however, had included portes (“portes, croisees, planches de cloison et de fermeture de boutique, gonds, tarjettes, serrures et autres, suivant l’usage des lieux”), which did not make its way into the English version. While doors could have been reasonably construed as belonging to the category of things mentioned in the English version, the court came down on the side of the lessee on account of the greater authority of the French original text. According to the court, while English-language law was to be generally dispositive, the French version of the 1825 code was authoritative because the Civil Codes of 1808 and 1825 were enacted in French before being translated into English. The decision to honor the French original was especially validated since, as the state Supreme Court found, “the English translation of the French text of the Civil Code of 1825 and, for that matter, the Code of Practice of 1825, was spectacularly bad.” The Court also quoted from Edward Dubuisson in the decision: 

“Even where the translations do not contain misleading errors, the vigor, the spirit, the 

clarity and finish of the originals are lost in the translation.”

If a team of human translators, even while producing an error-free translation, miss “the vigor, the spirit, the clarity and finish of the originals” how can we expect MT to capture these expressly humanistic qualities of legal writing?

Consent

Moving beyond the not inconsequential aesthetics of “vigor” and “finish,” research has found that MT use in high risk settings such as court and legal proceedings, despite its intention to enhance accessibility, can exacerbate existing inequalities. For instance, two recently reported cases revolved around US transport police officers using Google Translate to gain the consent of Spanish-speaking individuals to search their vehicles. Both cases resulted in the officers charging the individuals with a crime after finding illegal substances in the vehicles; however, the use of Google Translate to gain consent was challenged in court as an insufficient method of overcoming the language barrier, to differing degrees of success. In one case the motion was dismissed, yet in the other, the evidence was suppressed. These cases highlight both the lack of uniformity with which courts address issues of MT and consent as well as the pressing relevance of MT. 

While there is a mixed awareness of MT technology for legal use, states with significant Spanish-speaking populations such as New Mexico have begun to consider the technology more thoroughly. As Vieira et al. find, “The state court of New Mexico is an example of an institution that has considered MT in more detail. It has a track record of appointing non-English-speaking jurors and has provided MT use guidelines in relation to these appointments. The guidelines state that unedited MT should not be used for materials expected to fulfill a formal role, for example in court proceedings or as exhibits.” As MT only promises to become more prevalent in legal proceedings, it is important that these and other solutions, as will be discussed below, are carefully considered by the courts. 

Business

Another incredibly important realm of legal translation is that of business contracts, particularly in the case of US-China deals and translations, where the source and target languages are markedly different. If there is an ambiguity or a lack of a clear match in the target language, the translator may have to choose, and thus limit unbeknownst to the reader, a facet of the original meaning. According to Torbert, an expert in this field, “Even if translators can convey the ambiguity in the Chinese target-language document, a Chinese reader may interpret the ambiguity differently from the reader of the English source-language document. As a result, ambiguities can lead to serious misunderstandings.” To give an idea of the pervasiveness and seeming inescapability of such ambiguity, Torbert organized Chinese source language ambiguities into a daunting list of categories: singular or plural, verb tense, inclusion or exclusion in numbers and dates, conjunctions, abbreviations and English source language ambiguities into nouns and pronouns, prepositions, conjunctions, synonymous adjectives, adjective and adverbial phrase modification, negation, and post-modification. To provide an example of post-modification, for instance, Torbert details that 

“For example, in the English translation of the Catalogue Guiding Foreign Investment in 

Industry, an entry in the ‘encouraged’ category states ‘apparatus, instruments, and 

machines for cultural and office use in the manufacturing industry.’ The ambiguity is whether the phrase ‘for cultural and office use’ modifies only “machines” or ‘apparatus, 

instruments, and machines.’ In the original Chinese text, the phrase precedes ‘machines,’ 

so it clearly modifies only ‘machines’.” 

These ambiguity-inducing linguistic elements are clearly essential to legal writing. The answer then lies not in avoidance, but awareness, something that must apply to MT as well, but is arguably more difficult to get a machine to appreciate algorithmically.  

European Union

Beyond the scope of the US, the European Union’s parity system among its 24 official languages, in which each language version carries the authority of an original and no document is released until all translations are complete, is possibly the most impressively scaled feat of legal translation with 552 bilateral combinations. Because translation is not only cross-linguistic, but cross-cultural, additional issues arise in that the legal systems of EU member states themselves don’t align exactly, making perfect translation matches impossible. Furthermore, negotiations of course must occur in a language, creating an essential asymmetry and subtle prioritization of official and working languages. Perhaps filtering negotiations through the black box of MT, rather than the “procedural” languages of English, French, and German, could prevent this prioritization, yet in its current state, such technology would almost certainly obscure to some degree both meaning and the essential human to human understanding, even trust, that is necessary for successful negotiation.

Social Implications of Machine Translation

Law, clearly in the case of the US and more globally, has been translated and trans-linguistically negotiated more or less sufficiently over the years out of strict necessity. The laborious task of translating and negotiating terms, on a semantic as well as legal level however, is far from efficient. In order to save time and money, many firms may refuse cases brought up by a non-English speaker; or in cases where firms accept such cases, the additional time and money spent finding a translator and generating appropriate translations of documents often proves to be an unfeasible financial burden on the non-English speaker, which is especially detrimental if he or she is of an already marginalized class. In an effort to alleviate these financial burdens, speed up the process, and improve accessibility of legal services, some firms have turned to MT; however, MT is accompanied by its own set of significant advantages and disadvantages. The specialized even idiomatic vocabulary, the self-referential nature of legal texts, and the context dependent connotations of words differing from normal use are not only key components of legal writing but are also exactly the areas in which MT services such as Google Translate, which is trained on an enormous corpus of which legal texts make up only a fraction, are least accurate. For this reason, legal-specific MT software has emerged, yet its increased accuracy also comes with the risks of hyper specialization, as translation software designed for one sector of the law will lose accuracy if applied to another, and lessened accessibility, as subscription models are used to provide the revenue to train and maintain such specialized models, unlike free services such as Google Translate. 

Legal Implications of Machine Translation

Between 1980 and 2000, while the US population increased by 25 percent, the number of Americans speaking a language other than English at home nearly doubled. Thus, the malpractice issues posed by lawyers dealing with non-English documents are more relevant, but also with the growth of MT technology, potentially more addressable than ever. While there is a precedent for regulating interpreters in court, no such thing exists for translators or translation systems as of yet. Investing in machine translation software has recently proven to be more efficient, both in terms of saving time and money, than hiring human translators, yet the issue arises that lawyers are unable to verify accuracy of output themselves and are likely unaware of or even unlikely to understand the exact complexities of machine translation software behind the user interface. In addition to the dangers of a blind reliance, use of some MT systems such as Google Translate can also breach client confidentiality, sharing client information or data with the MT provider. Furthermore, consequences of poor translation can be detrimental to individuals as well as court systems more broadly: For instance, in the mid 1900s a mistranslation of some German phrases in a European Court of Justice judgment ultimately resulted in over 200,000 suits being inappropriately filed in German courts. 

In her discussion of potential malpractice issues arising from MT use for preparing legal documents, Wahler cites the 1932 T.J. Hooper case which held the defendant responsible for damages resulting from tugboats lost in a storm for failure to equip them with proper radios as precedent that under the standard of care sufficiently available modern technology can be reasonably expected to be employed. Thus, as non-English speaking individuals have a right to gain representation and understand their case proceedings as enabled by translation, lawyers have a responsibility to make use of modern technology as safely, effectively, and informedly as possible. 

Solutions

While the impacts of MT in legal translation, and human-conducted legal translation more broadly, are undoubtedly far reaching, from challenging consent to enhancing accessibility to expediting business proceedings, clear and necessary solutions, as Whaler advocates, include increasing regulation of translation providers, as is the case for interpreters and is substantiated by President Carter’s 1978 Court Interpreters Act, promoting a hybrid model of initial MT then review by a human translator, and certifying law-specific machine translation services for enhanced accuracy and confidentiality.  

In the specific English-Chinese business translation realm, Torbert suggests back translations, or memos highlighting preexisting ambiguities, and comparing the lengths of paragraphs to check for obvious additions or omissions (Chinese texts are typically three-quarters the length of English texts). Offering a front-end, pre-translation solution, Torbet also suggests that “English speakers can help their translators by writing precise and unambiguous English. These extra steps can be time-consuming, but they can save foreign businesspeople from spending even more time and money dealing with the serious consequences of unintended misunderstandings” (53). Although certainly useful in a business context, these solutions don’t scale across all translation issues in the US, indicating a need for categorized regulation based on the type of litigation. 

Other solutions include adopting ABA’s recommendations regarding translation, specifically Standard 7 drafted by ABA’s Standing Committee on Legal Aid and Indigent Defendants: 

“To ensure quality in translated documents, courts should establish a translation protocol that includes: review of the document prior to translation for uniformity and plain English usage; selection of translation technology, document formats, and glossaries; and utilization of both a primary translator and reviewing translator.” 

Notably, this recommendation recognizes the reality of machine translation, the need for human review, and the benefits, when applicable, of drafting the English original in a more easily translatable form, or at least identifying potential problem areas, which  Torbet argues for as well. Additional steps to ensuring a more equitable use of MT in legal circumstances include requiring consent forms in the speaker’s first language before using Google Translate to protect client confidentiality, requiring some degree of education for lawyers regarding translation and machine translation services, developing an agency to regulate MT use in the law, and requiring proof of human translator review. As the world becomes more globalized, multilingual, and technologically advanced, the issue of machine translation and the law will only continue to grow in relevance. 

Robert Frost remarked that “poetry is what gets lost in translation;” we have a responsibility to ensure that legal meaning, that individual rights are not lost in translation as well. 

The False Reality of Foreign Neutrality

Justin Murdock

Abstract

As the Russian juggernaut ravages through Ukrainian cities and civilians and eastern European democracy proves to be dire in the alarming crisis, American intervention without provoking an all-out nuclear war seems like a must. However, given that the United States is currently at peace with the aggressor, Russia, as per the Neutrality Act and corresponding penal statutes in Title 18, individual citizens cannot engage in acts of aggression. There is one caveat that must be urgently addressed: the geographic boundaries of conscription, organization, and intervention. Under current laws, military intervention can be undertaken by U.S. citizens beyond U.S. borders, leading to potential issues such as the shattering of neutrality and escalation of the war. Through examination of the statutes’ texts and applications in foreign affairs and historical cases, this piece concludes that the distinction between conscription domestically and abroad must be prohibited to ensure that neutrality is genuinely preserved in our modern day. 

Background

The Neutrality Act of 1794 and corresponding US Penal Code, known together as Title 18, outline the sorts of intervention individual actors from the United States can take in a foreign conflict. These two statutes date back to the founding of the  nation and were particularly relevant in regards to European militias during the 1790s. Given Putin’s bellicose crackdown on Ukraine, however, the relevance of these laws has resurfaced in the context of modern volunteers. While the Neutrality Act of 1794 has been reenacted and amended multiple times to clarify the associated penalties and breadth of its jurisdiction, it effectively lives on in 18 U.S.C. § 960. 

Three statutes in the Penal Code are of particular importance regarding relevant action modern peacekeeping conscripts can take: 18 U.S.C. § 958, 18 U.S.C. § 959, and 18 U.S.C. § 960. The first involves accepting commission on U.S. soil against a foreign polity who is at peace with the U.S.—in this case, Russia. The second involves enlisting in the service of a foreign entity on U.S. soil, which is irrelevant to whether the respective foreign force is at war. The third involves furnishing and organizing money for foreign militaries on U.S. soil in conjunction with participating in an expedition from the United States, which is an adaptation of the statute’s first rendition under President Washington’s Neutrality Act. While Congress certainly can and should give a firm position on U.S. military intervention in foreign operations, the distinction between foreign and domestic recruitment, organization, and fundraising of the Neutrality Act should be repealed given the fallacy it provides abroad. Determined militants may take steps on foreign territory to effectively make it null and void. 

Legal Bases

The three statues in the Penal Code have gone through multiple trials and errors throughout events involving foreign militias—from the founding of the statute during the Revolutionary War to the recent applications in Operation Gideon in Venezuela and the Gambian coup d’état attempt. Title 18 is undoubtedly key to the integrity of American foreign policy, and by no means does this argument seek to diminish its past or present importance. After all, armed citizens with a desire to overthrow foreign powers for the sake of alleged domestic peacekeeping would throw the international system into anarchy; as such, penalties must exist to keep ambitious militants in check. That said, the exception regarding American military actors outside U.S. turf could allow belligerents to evade prosecution and retribution as per 18 U.S.C. §§ 958-60. These laws cite people susceptible to prosecution as “any citizen of the United States who, within the jurisdiction thereof,” or “whoever, within the United States,”—meaning, technically signing up outside U.S. soil would be legal. Regardless of the neutrality laws, would signing up to participate in a foreign conflict (that the U.S. has stated neutrality on) outside U.S. soil make a difference? Yes. On principle, would signing up violate this neutrality? Yes—it has, and it will regarding the Russo-Ukrainian War. 

The Penal Codes have been put under scrutiny regarding certain hostilities and instances of foreign intervention. Notably, Gayon v. McCarthy (1920) set forth a clarification that the furnishing of funds on U.S. turf would be sufficient to prove a violation of the Neutrality Laws. Additionally, under United States v. Murphy (1898), “military enterprises” composed and premeditated on U.S. land are grounds for violations once more. While these laws address the issues of their respective times, our increasingly-digitized world makes cyber-conscription and other means of advocacy for belligerent forces significantly easier for civilians—with boundless websites and outlets for recruitment abroad. For example, the laws present issues with digital conscription with acceptance under Sec. 958 and enlistment in Sec. 959. Additionally, though Sec. 959 has addressed the arrangement of payment, one must consider pro-bono work or payment received through non-governmental organizations representative of civilians.

Due to the specific language set forth in these laws, breaking neutrality in a way that conflicts  with U.S. foreign policy is a criminal act. Essentially, one can avoid this criminalization by launching a private war, sparking a coup, or fostering a bellicose political movement if such conscription and organization occurs outside the United States. In essence, however, they are non-neutral representatives of the United States. If a warmongering veteran joins a brigade in Ukraine on Ukrainian turf, brandishing an American patch and rifle, Russian corps will not know of American neutrality laws or assume that America is merely neutral in this crisis. While one can certainly believe that Putin’s heinous, excessive, and certainly unwarranted campaign should be denounced and chastised, one simultaneously needs to consider the Pandora’s box the Neutrality Act leaves open for alleged freedom fighters.  

Conclusions

Given the review of the vague terms set forth in various aspects of American penal law, and precedents set in case laws related to such statutes, this paper calls for the repeal of the Neutrality Act’s domestic and foreign conscription nuance. Thus, the Justice Department must eliminate the distinction, thereby banning foreign intervention, or be firm in support of civilian aid. Obviously, the former could potentially escalate, drawing all of NATO into the conflict, meaning the evident choice would be the latter.
The involvement of U.S. troops would dangerously escalate the crisis, and the burden set forth in the Neutrality Act does not help with independent U.S. conscripts dodging the restrictions and engaging militarily with Putin’s forces. As proven in past military operations, whether it be the conflicts in Afghanistan, Iraq, Syria, or even Ukraine itself in 2014, these volunteers often prove to be untrained extremists zealous for bloodshed and martyrdom. While de-escalation of the crisis and retribution of the autocratic Russia are a necessity, the Neutrality Act should not be the venue for passionate Americans to do so and should urgently be repaired to avoid military escalation. This statute constitutes a false reality of foreign neutrality, ready to implode with unforeseen military consequences.

How Long Will China’s Animal Cruelty Laws Have to Wait?

by Leyuan Ma

Background

In April 2020, a university student in China’s Shandong Province was expelled from school after videos of him mercilessly torturing and murdering over 80 stray cats surfaced on the Chinese internet; in October of the same year, a man from Shanxi Province poured boiling water over a pregnant cat, killing her and four unborn kittens; in November 2021, a pet dog was brutally killed by health workers while its owner was in quarantine for COVID-19. Numerous incidents of animal cruelty like these have surfaced in China in recent years. In response, more and more Chinese citizens are calling for stricter protection of animals and the promulgation of robust animal cruelty laws. Though animal welfare legislation is still a somewhat controversial subject in the country, a 2020 vote launched by CCTV News (a Chinese state-owned broadcaster) on Weibo (a Chinese social media platform) shows that the demand for a national anti-cruelty law is overwhelmingly strong: on the question of whether China should pass legislation against animal cruelty as soon as possible, among the 299,000 participants, more than 280,000 voted yes.

However, despite popular support for animal cruelty laws, certain procedural obstacles in China’s legislative system make it implausible that China will introduce comprehensive legislation on animal protection in the near future.

Currently, there exists only one nationwide law on animal protection in China: the Wild Animal Protection Law. Adopted in 1988, it only provides protective measures for certain precious or endangered species of wildlife such as pandas, pangolins, and snub-nosed monkeys. Though some efforts have been made toward guaranteeing animal welfare (e.g., the 2005 Livestock Law, which regulates the treatment of livestock during breeding, trade, and transportation), there still exists a large gap in animal protection legislation.

In late 2009, a team of legal scholars published an expert draft of an Animal Cruelty Law of China. The first of its kind in China, the draft law mainly included specific anti-abuse protections for wild, economic, companion, lab, and other types of work animals. It defines “abuse” as “intentionally inflicting unnecessary pain and injury on animals, or killing animals, by cruel means or methods,” and those who violate the law could be sentenced to a fixed term of imprisonment for up to three years. If the law were enacted, it would mark a great advancement for the animal welfare cause in China. But twelve years after the publishing of the draft proposal, there is still no word of it being made law. Why is this so?

Legislative Process and Procedural Obstacles

To understand the obstacles facing animal cruelty legislation, a rudimentary grasp of the legislative process in China is necessary. National laws are promulgated by the National People’s Congress (NPC, the national legislature of China) or its Standing Committee. In general, most legislation goes through a basic agenda-setting process: a proposal for legislation is first drafted, usually by ministry staff or NPC delegates, and then formally submitted to the State Council or NPC. After reviewing the hundreds of proposals submitted, the Legislative Affairs Office (LAO, now a part of the Ministry of Justice) and the Legislative Affairs Commission (LAC, a bureau under the Standing Committee), together lay out government policy priorities with respect to the proposed laws. Once these priorities are approved by the State Council, the LAO and LAC publish an annual legislative plan. A regulation or law on the plan is then finalized and promulgated, and finally forwarded to the President of China for signing into law. The amount of time it takes a law or regulation to pass through China’s legislative process can vary enormously, ranging from six months for the Food Safety Law to 15 years for the Antimonopoly Law to pass. Essentially, delays can occur in any part of the process, as a legislative item can stall if it is not yet a priority, if it is controversial, if the political mood changes, or if the involvement of various interest groups increases or decreases.

In the case of animal cruelty legislation, the problem currently lies at the second stage–– the laying out of government priorities by the bureaus under the NPC and the State Council. The expert draft of the Animal Cruelty Law was sent to the Chinese Central Committee and the Standing Committee of the NPC well back in 2010, but it has still yet to be included in the legislation plan of the NPC. 

In March of this year, during The Fifth Session of the Thirteenth National People’s Congress, Deputy Zhu Lieyu once again submitted a proposal for an animal cruelty law, the fifth time he has done so during his tenure as a delegate. He believes that “the lack of relevant laws and regulations on animal cruelty and punishment in [his] country” makes it extremely difficult for “actions of animal cruelty to receive due punishment.” Zhu Lieyu’s most recent proposal has prompted renewed attention to the problem of animal cruelty in China, and his priorities reflect the wishes of many Chinese citizens. Even so, due to the reluctance of officials in the State Council and LAC to prioritize animal anti-abuse laws, we are left still waiting for the legislative process to start.

Reasons and Possible Procedures

Many people might wonder why legislators have failed to make animal protection a legislative priority. I believe the answer is a combination of considerations regarding the necessity of animal protection laws and cultural differences between China and Western countries. 

In a reply to NPC deputies’ request for anti-cruelty laws in 2020, the Ministry of Agriculture and Rural Affairs explicitly stated that “at present, most acts of cruelty to animals can be adjusted through existing laws and regulations, and many departments such as public security are cracking down on related illegal and criminal acts. Cruelty to animals in social life is only a rare phenomenon […] It is not necessary to formulate a special law for this rare violation of morality.” They cited that, for instance, the Livestock Law of 2005 guarantees the welfare of livestock, and the revision of Article 26 of the Wild Animal Protection Law in 2016 regulates practices in the artificial breeding of wild animals.

However, some experts still argue for a more systematic and comprehensive set of regulations. Though modifying existing laws such as the Criminal Law might be faster and more efficient than procuring a new animal cruelty law, the current regulations on the treatment of companion animals and stray animals are still relatively vague. Yet, there are still others who believe other legislations are of higher importance and that the protection of animals should wait. While the answer to this debate on priority is not yet clear, the only thing we know for sure is that the debate itself will delay the legislative process and stall hopes for a new animal cruelty law anytime soon. 

Of course, one must also take into account China’s unique social and cultural environment. China has a long history of animal utilization, and there are many industries engaged in animal production, processing, and utilization. Due to huge demands and limited land resources, improving the welfare of farmed animals would incur considerable costs for running animal farms and would raise meat prices significantly. Cultural differences within China regarding the treatment of animals could also be difficult to eliminate. For instance, many parts of China still have the tradition of eating dog meat, and dogs only became common household pets beginning in the late 20th century. Every year the notorious Yulin Dog Meat Festival takes place in Guangxi province, where people kill and eat tens of thousands of dogs to celebrate the summer solstice. Though this might seem appalling to most people, a considerable number of Chinese people still adhere fiercely to this tradition. Comprehensively improving the level of animal protection will surely be an arduous systematic task that requires the joint efforts of the whole Chinese society. This task is complicated by Chinese society’s lack of uniformity regarding the proper treatment of animals. 

Conclusion

In short, though the animal protection cause has garnered increased attention and support over the past decade, it is unlikely that China will enact animal cruelty legislation in the near future. However, there is hope that anti-cruelty stipulations will be added to existing legislation, and thus gradually increase the welfare of animals in China. As China’s level of social and economic development improves and anti-cruelty becomes a social consensus, we should remain optimistic that the prospects for a robust animal protection law will also improve in the coming years.

El Salvador’s Bitcoin Law: Contemporary Implications of Forced Tender Legislation

by Cecilia Quirk

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1 Prin.L.J.F. 48

Background

From the invention of paper money in 7th century China to the FDR administration’s decision to drop the gold standard in 1933, money has constantly evolved in unexpected, even unsettling ways. Just as a world without paper money, or even without credit cards, seems unimaginable today, it’s no wonder that the future of money lies in some new technology, namely Bitcoin. First minted in 2009, Bitcoin has soared to new popularity in the past couple of years. This monetary evolution, even revolution, was made possible due to advancements in technology and shifts in consumer perspective and has inspired regulatory and legislative innovations which pose interesting and novel legal challenges dealing with freedom of exchange and contract. A fascinating backdrop for these challenges lies in the context of El Salvador’s Bitcoin Law. 

On September 7, 2021, El Salvador became the first country to adopt Bitcoin as legal tender with the passage of that nation’s so-called “Bitcoin Law”, which placed Bitcoin alongside the U.S. dollar as El Salvador’s official currency. (An important distinction, however, is that while both the U.S. dollar and Bitcoin are legal tender in El Salvador, only Bitcoin is forced legal tender). This meant that all Salvadoran businesses must accept Bitcoin as a means of transaction, taxes are payable in Bitcoin, and the government can now distribute subsidies in Bitcoin. To accompany this law, El Salvador rolled out a supporting network of 200 Bitcoin ATMs, introduced a new digital bitcoin wallet app called Chivo, and distributed $30 worth of Bitcoin to every citizen to kickstart the change. 

Pros and Cons

Proponents of the new Bitcoin Law in El Salvador, such as President Nayib Bukele, say that Bitcoin will give the 70% of Salvadorans without bank accounts access to financial services, and help “reduce the fees they pay to send and receive remittances.” One in every four Salvadorans live abroad, and with the exception of Haiti, El Salvador is the country most reliant on remittances in the Western Hemisphere, accounting for almost three of every 10 dollars, or nearly $6 billion, in El Salvador’s economy. In fact, many advocate for the use of crypto in developing countries, arguing that the prevailing global financial system serves wealthy countries and individuals best. 

On the other hand, less developed economies are more vulnerable to Bitcoin’s notorious volatility and lack of regulation by a central bank. Soon after El Salvador announced that they would be adopting Bitcoin as forced legal tender, the International Monetary Fund (IMF) paused negotiations for the 1.3 billion dollar assistance package to tackle the country’s debt and allow for sustainable public spending taking issue with lack of transparency and environmental costs of cryptocurrency. In a reactionary blog post to El Salvador’s consideration of making Bitcoin a legal tender, IMF cited legal issues including the lack of wide accessibility, a necessary component of a legal tender, due to inconsistent internet access and technological inequities. Just over 50% of El Salvador’s population has internet access, making a legal tender, especially a forced tender, that relies on internet access untenable for much of the population and calling into question who politicians and legislators really had in mind when developing the Bitcoin Law. Within the country, there is a notable lack of support for the law, with a poll by the Universidad Centroamericana Jose Simeon Canas finding that 67.9% of Salvadorans were not in support of the decision to adopt Bitcoin as a legal tender due to both a lack of trust in Bitcoin (8 out of 10 respondents) and a lack of understanding of how to use the new technology (9 out of 10 respondents). 

Article 7 of El Salvador’s Bitcoin Law

Despite the notable complexity, both technologically and legally, of adopting Bitcoin as a forced legal tender, El Salvador’s Bitcoin Law, and Article 7 which enforces the legal tender, is incredibly brief. According to Article 7, “Every economic agent must accept bitcoin as payment when offered to him by whoever acquires a good or service.” In other words, paying with and accepting Bitcoin is not only legal, but its acceptance as payment is compulsory. Policy aside, experts have also argued that forced tender, such as that prescribed by Article 7, is legally unsound as it contradicts the freedom of exchange and contract. Dror Goldberg, an expert on the history of compulsory tender laws, expands upon this claiming that “As [forced tender legislation’s] practical implication has typically been to force producers to part with all their produce for paper, it can also be a severe violation of property rights. It is a rule that penalizes passive behavior. It is, or should be, a controversial rule, unlike a rule prohibiting counterfeiting of money.” Even the U.S. dollar is not a forced tender in El Salvador. Most countries, including the United States, conscious of forced tenders’ restriction on personal freedoms do not have forced tender laws (ex. “Credit only” businesses may refuse to accept cash without legal repercussions). 

Historical Perspective

While forced tender legislation may seem like a new issue, or at least newly relevant, it in fact has a rich and relevant history. In his 2016 article Forced money: legal development of a criminal economic rule, Goldberg argues that forced tender legislation not only infringes upon the freedom of exchange and contract but also represents economic authoritarianism. Tracing the transportation and translation of legal tender laws from Revolutionary to Napoleonic France, the Ottoman Empire, British Cyprus, British Palestine, and Israel, Goldberg concludes that forced legal tender was able to take hold in these instances due to the presence of struggling economies, weak governments, and legislators in favor of economic authoritarianism. As the COVID-19 Pandemic has reversed El Salvador’s previously declining inflation rates, economic growth and direct foreign investment remain chronically low, and weak government institutions have proven to be especially vulnerable to corruption, the country certainly fits the trends Goldberg identified in his research. Interestingly, and unanticipated by Goldberg’s historically-oriented analysis, Bitcoin is a symbol not of the state itself but of its future, of the inter- or even a-national tech hub that President Bukele and legislators hope El Salvador will become. Thus, the “symbolic implications on sovereignty” that Goldberg notes are characteristic of forced tender laws are even more devious in the case of El Salvador where Bitcoin is not stamped with the visages of current or previous Heads of State but is rather the digital face of a disembodied blockchain network. Symbolically then, if Bitcoin’s notorious volatility leads to a drastic downturn in value, it may be shoved off as a failure of technology rather than the laws and leadership of El Salvador. As Goldberg states, “Accepting the state’s money against one’s will is a symbolic obedience to the state,” yet in the case of El Salvador, accepting Bitcoin as forced tender is an obedience to a technological future that as of now, and without the help of the government, will leave many Salvadorans behind. 

Domestic and Foreign Response

The initial rollout of Bitcoin in El Salvador was far from smooth, complete with thousands taking to the streets of El Salvador to protest and technical issues making the Chivo wallet app unusable and its cash inaccessible. There was even a 10% fall in the value of Bitcoin compared to the U.S. dollar on the day it was made legal tender in the country—and has since seen more declines in its value. While Bukele is selling the rollout as a success, claiming that a third of Salvadorans are using Chivo, it is possible that a majority of that demographic is simply using the app for the $30 incentive from the government. In fact, according to The Financial Times, one of El Salvador’s largest banks reported that Bitcoin constituted less than 0.0001% of its daily transactions in early September. Other media outlets also noted excessively long lines at ATMs with people rushing to convert their Bitcoin to more trusted cash.  

Despite the general lack of popularity and ease of use for the Salvadoran public, El Salvador has projected an Insta-worthy image of technological advancement to appeal to young entrepreneurs. TIME describes a sleek launch party where primarily English-speaking crypto fans and social media influencers, even YouTuber Logan Paul, celebrated the law. Bukele, apparently, wants these festivities to last and has promised permanent residency to those who spend three Bitcoin (about $125,000) in the country. Bukele has also pointed out that the legal tender status of Bitcoin, rather than simply an investment asset, in El Salvador allows foreigners moving to El Salvador to avoid the capital gains tax on any profits made as a result of Bitcoin’s value fluctuations. In a tweet of about the same length as Article 7 itself, he further advertises “Great weather, world class surfing beaches, beach front properties for sale” as reasons that crypto entrepreneurs should move to El Salvador. Given the subsidization by the government and foreign facing nature of the incentives, the adoption of Bitcoin as forced tender seems more like a get-rich-quick economy-boosting gambit than a true attempt to systematically improve the lives and financial well being of El Salvadoran citizens. This is dangerous as, while it’s uncertain if the average El Salvadoran citizen will benefit as much as the tech-savvy international, forced tender ensures they will bear the brunt of the risk regardless. 

The IMF and more importantly the majority of El Salvadoran citizens aren’t the only ones discontent with the Bitcoin Law. Notably, the deputy of the leading opposition party in El Salvador, Farabundo Marti National Liberation Front (FMLN), has filed a suit regarding the constitutionality of the Bitcoin Law. Even some crypto enthusiasts take issue with Bitcoin as legal tender, not necessarily because it undermines the rights of citizens but more so because it arguably undermines the legitimacy of cryptocurrency in general. Cryptocurrency in its decentralized state was created exactly to exist outside of government controls so its adoption and potential regulation by governments such as El Salvador seems to defeat the purpose. While not directly related to the Bitcoin Law, the U.S. recently released a memo expressing concern over the September 3rd decision “which authorized immediate presidential re-election in contravention of the Salvadoran constitution.” This decision seems to confirm the authoritarian trend in El Salvador evident in economic authoritarianism of forced tender and Article 7. The adoption of Bitcoin as legal tender, which some fear will soon completely replace the U.S. dollar, could also reduce the potential effect of U.S. economic sanctions in the case of future more authoritarian decisions. 

Conclusion

As the potential for more regulation over and integration of Bitcoin into the mainstream U.S. economy looms large, other countries may prove to be important case studies pertaining to the feasibility and legality of the transition to digital dollars. While countries such as China have notably increased regulations before declaring all crypto transactions illegal, other countries, or at least their leadership as seen in the case of El Salvador, have embraced the crypto movement. Although the concerns arising from Bitcoin as forced legal tender should extend to its role in El Salvador and certainly not be limited to the potential impact on our own country, Goldberg’s observation that “The young United States knew forced money laws from its own Revolution, but continuing it in peace was incompatible with the values of a free-market democracy” should no longer be taken for granted.

The Gender Dichotomy: How Sharia Law in the Seventh Century Granted Women Legal Empowerment

by Noura Shoukfeh

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1 Prin.L.J.F. 44

The world’s youngest major religion, Islam, was established in the seventh century when the Prophet Muhammad amassed a following dedicated to the revelations he recieved in the Qur’an. The growth of Islam in the decades after Muhammad’s death, combined with the widespread need to implement a coherent ethical account of Islamic actions resulted in the development of an legal system known as Sharia law.

The Sharia system is based on three central components: the Quran (the central sacred text of Islam), Sunnah (the Prophet’s actions and non-Quranic statements), and fiqh (logic). Islamic law and practice stood in contrast to many of the practices of the surrounding Arabian tribes, particularly with regard to the roles and rights of individuals based on their gender. Notions of gender equity in Islamic law have vastly differed between academics and across time periods, however, many traditional and modern Islamic scholars argue that the way in which Sharia law was used in court precipitated considerable strides in the advancement of women’s rights, levelling the legal playing field between the two genders in the seventh century. Rights regarding inheritance, marriage and divorce, and the social classification of women, are three of the most debated spheres of Islamic law, both within dialogues of contemporary and traditional jurisdiction in terms of exemplifying the progression of women’s rights. 

Atlaq and Mahr

Under the Quran, both men and women can petition for atlaq (divorce), and women do not need a specific reason to file for divorce (such as adultery) — the marriage having broken down is itself a plausible cause for divorce according to fuqaha (Islamic judges). In the seventh century, this right was not experienced by women across the world; in fact, the enactment of divorce by a woman was perceived as an uncommon act, and in many regions disallowed in court. For context, in England, women gained the right to divorce only in the nineteenth century under the Matrimonial Causes Act of 1857,– upon colonizing the Ottoman Empire in the nineteenth century, the British discovered “Muslim women had already had the right to divorce for a thousand years”. 

Although physical or mental neglect or abuse was not a prerequisite for a divorce to pass through the courts, the ability to divorce was particularly beneficial for Muslim women as it allowed them to leave marriages in which they were being improperly treated. However, it is important to note the distinction between the cases for divorce by men and women — the husband could divorce without cause, but the wife had to have the base reason of “incompatibility” for the initiation of a divorce. This distinction between the preconditions for men and women points to a separation in rights between genders. Nevertheless, in comparing the rights of Muslim women to non-Muslim women in the context of the 600s, the right for Muslim women to instigate a divorce was a significantly more progressive right than those extended to their non-Muslim counterparts in other regions of the world.  

Before the topic of divorce entered the conversation, however, there was an inchoate concept known as “mahr” which established a “wife as a contracting party in her own right to her own marriage”. There are different legal interpretations of what the mahr can be or is meant to be, but generally, it is recognized as a “gift or contribution made by the husband-to-be to his wife-to-be, for her exclusive property, as a mark of respect for the bride, and as recognition of her independence”. It is similar in concept to a dowry which is prevalent in some Middle Eastern and Southeast Asian cultures, except, here, the female is receiving the gift or the “mahr” instead of the male. The two are also distinct in the fact that the dowry is used by the husband to take care of his wife, while the mahr consists of property and assets solely under the wife’s discretion. This early concept not only allowed a woman to have negotiating power within her marriage, but also served as a way to financially protect her in the case of the dissolution of the marriage; rights many women across other parts of the world did not enjoy. 

Inheritance 

In the pre-Islamic era, inheritance in the central Arabian region occurred on the basis of the patriarchal “principle of proximity,” in which wealth and estates were passed along the male lineage of the family, starting with immediate members and moving distally across family relations. The practice of gender-based inheritance put women at an immediate economic and social disadvantage as they would not have personal means to support themselves, and were thereby forced to rely on brothers, fathers, husbands, and other male relatives to provide and care for them. The adoption of Islam in the legal systems of the Hejaz, Najd, and Eastern Arabian regions marked the beginning of a new system of inheritance in which women were entitled to a share of viz (inheritance). The transmission of property and assets is complex and highly situationally varied in Islam, but the main difference between pre-Islamic and Islamic law is that under the Islamic rubric, daughters were able to receive an inheritance if a parental figure passed away. 

Now, some modernist non-Islamic scholars nevertheless perceive the Islamic law’s bearing on  inheritance as limiting for women, given that daughters receive one-half of the share of inheritance that their brothers receive. This is justified in the Qur’an through an explanation of different expectations of men and women based on their gender. Critically, the son receives twice the amount of inheritance, as under Sharia law it is required that men utilize their received finances to take care of and financially support the women of the family, including but not limited to his sister. Women, comparatively, are not under any legal obligation to employ their monetary assets for the benefit of the family. Thus, a woman’s entitlement to viz created a structure where women do not have to rely on their male family members, and provided them with financial sustainability, a luxury that women in non-Islamic Arabian tribes did not get to experience. 

Social Status

The social classification of people is the basis of individuals’ treatment and the premise for the privileges people have access to under their respective legal systems. The non-Muslim Bedouin tribes dominating the Arabian Peninsula in the sixth and seventh centuries had rigid hierarchical social structures in which males were perceived as superior to women. Women had severely restricted rights and “were often considered property to be inherited or seized in a tribal conflict.” The reduction of women to “property” eradicated the legal rights of women, as under the law, they were not seen as individuals with rights but rather property that could be obtained. Under Islamic law, however, spiritual equality is granted to both men and women uniformly and without restriction, and as a result, placed women in an advantageous social position relative to the jahiliyyah (pre-Islamic) period’s treatment of women. Islamic law does take into account the physical and psychological differences between men and women, but in terms of many social roles, women and men are on equal footing. In this context, men and women are viewed as equals by God, and the only way for persons to be seen as above one another is through their enactment of deen (good deeds). Under this legal categorization of women as individuals with human rights rather than possessions of men, women were enabled to work, encouraged to receive an education, were capable of proprietorship, among other capabilities in the seventh and eighth centuries. The delineation of the woman’s position and standing within the Quran thus granted them abilities to utilize which non-Islamic women could not engage in due to social stratification within their respective communities. 

Conclusion

In the context of its time and even in modern perception, Islamic law granted women followers innumerable human rights recognized under the law and addressed many of the inequalities women had been facing as a result of living in a structurally patriarchal society in the seventh century. The division of viz created monetary security for women, while the setup of mahr protected a woman’s finances prior to the initiation of a marriage. The request for divorce being accessible to women resulted in safety nets for women and the establishment of relative gender equity under the law in terms of social status established the fundamental access women have to their guaranteed rights outlined in the Quran. Whether specific Islamic societies actually enforced the rights entitled to women in court is a question to be debated– and is an issue highly prevalent in many modern Muslim countries with governmental enactment of Sharia as the law of the land. Nonetheless, in theory, the structural dynamics of Islamic law and the rights provided by it allowed Muslim women to enjoy many privileges typically experienced by men in the seventh century and creates a system in which women are meant to function independently of men.