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.

The Supreme Court’s Perversion of Property Rights

by Beck Reiferson

Political philosophers have long regarded the right to property as one of man’s most essential rights. John Locke, whose writings were among the most influential on the political thought of America’s Framers, believed the primary purpose of governments is to protect its citizens’ property rights. In his Two Treatises of Government, he argued that the “great and chief end… of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” The Framers agreed that protections of property rights were of paramount importance, as the pervasiveness of precisely such protections throughout the Constitution makes clear. Among the Constitution’s explicit protections of Americans’ property rights is the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” Known as the Takings Clause, this clause lays out the proper scope of the federal government’s eminent domain power: it may seize private property, but only if it justly compensates the property-owner and the property will serve a public use. The public use requirement—called the Public Use Clause—is central to Takings Clause jurisprudence. I will argue, however, that through its rulings in Hawaii Housing Authority v. Midkiff and Kelo v. New London, the Supreme Court has whittled away at Americans’ property rights by erroneously contorting the Public Use Clause into a “Public Utility Clause.”

In 1967, Hawaii passed a law to address the fact that only seventy-two private landowners owned almost half of the property in the State. The law transferred legal titles from these landowners to lessees. In Midkiff (1984), the Court unanimously held that this law did not violate the Takings Clause of the Fifth Amendment because the “‘public use’ requirement is… coterminous with the scope of a sovereign’s police powers.” In other words, as long as the government is seizing property to advance the public good, the taking satisfies the Public Use Clause. Justice O’Connor, writing for the Court, put this point bluntly: “The mere fact that property taken outright by eminent domain is transferred… to private beneficiaries does not condemn that taking as having only a private purpose.” Since the law in question could plausibly be said to benefit the public, the Court deemed it constitutionally permissible. 

The Court’s emphasis on the law serving a public purpose has no basis in the text of the Fifth Amendment. The Public Use Clause means exactly what it says: for a taking to be constitutionally valid, the property that is being taken must be made available for the public to use—not just confer some indirect benefit on the public. And for the public to use property, one of two criteria must be met: either the public must have a right to enter the property or the property must be publicly owned. A park, for example, obviously meets the first of these criteria, while a government building meets the second. The privately owned homes at issue in Midkiff, however, met neither of these criteria. Therefore, contrary to the Court’s decision in the case, the Public Use Clause prohibits the actions of the Hawaiian legislature. If the Framers wanted governments to be able to seize private property that would be used in any way to benefit the public, they would have written a Public Utility Clause. Instead, they wrote the Public Use Clause, and “public use” means “public use.”

Kelo v. New London (2005) presented the Court with an opportunity to correct its error in Midkiff. Instead, the Court doubled down, declaring that the City of New London’s transfer of private property from private homeowners to private companies satisfied the Public Use Clause because the City could plausibly argue that the transfer served the public purposes of improving the local economy and raising tax revenues. Just as in Midkiff, the majority in Kelo did not contend that the public would literally use the seized property. Rather, they weighed the merits of the City’s argument that the property transfer would be economically beneficial and decided that the public utility derived from the seizure was enough to satisfy the Public Use Clause. The majority thus again wrongly conflated public use, which the Constitution requires, and public utility, which, by itself, is insufficient to make a government’s exercise of the eminent domain power constitutionally valid. 

The distinction between “use” and “utility” is more than just semantic: the Court’s misguided interpretation of the Public Use Clause has significant implications for the security of Americans’ property rights. By interpreting the Public Use Clause as a Public Utility Clause, the Court has greatly expanded the scope of the government’s eminent domain powers. A government that can only seize private property if either the government itself or the citizenry at large will use that property is a government with a very limited ability to seize private property. Such a government could permissibly seize private property if it planned to turn it into something like a government building, park, highway, or school, but seizing private property just to transfer it to other private owners for their own use would be strictly off-limits. On the other hand, a government that can seize private property as long as its plan for that property can plausibly be said to indirectly benefit the public is a government with a nearly limitless ability to confiscate property. This is particularly true when courts afford legislatures broad discretion to determine what constitutes public utility, as the Supreme Court promised to do in Midkiff. When a government has that much latitude to seize private property, property rights are extremely insecure. For the Court to supply Americans’ property rights with a greater degree of protection—the degree of protection the Framers intended Americans to enjoy—it must interpret the Public Use Clause as a strict requirement that governments can only seize private property if the public or government will actually use the property. The overruling of Midkiff and Kelo is long overdue.

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

by Cecilia Quirk

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

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. 

Asian American Lawyers: Then and Now

by Rebecca Cao

Introduction

Conversations about Asian Americans have only just captured national attention as anti-Asian hate crimes have escalated amidst the COVID-19 pandemic. Within the past two years, numerous discussions about Asian American identity, stereotypes of Asians, and America’s egregious history of exclusion against Asian Americans have surfaced, and, most recently in July 2021, Illinois became the first state to require the teaching of Asian American history in public school classrooms. As an aspiring lawyer who has paid attention to and often participated in such discourse, I have especially wanted to learn more about Asian American lawyers, who I believe can further enrich and complicate our understanding of Asian Americans overall. In what context did the first Asian American lawyers emerge? Who were some of the most prominent Asian American lawyers in the past, and how have they shaped American law? What are the unique obstacles that Asian American lawyers endure today? These are just some of the questions that have long interested me, and I will attempt to answer them in this article. 

While I have discovered a few sources that already examine these issues (which will be referenced later), this article will aim to provide a more cohesive narrative demonstrating the overall journey of Asian American lawyers from the 1880s to modern years. Its purpose is twofold: to briefly trace the emergence of Asian American lawyers throughout American history, and to illuminate the present conditions and challenges of Asian American lawyers today. To be clear, it is beyond the scope of this article to be comprehensive; it does not attempt to identify every single Asian American lawyer in Asian American history, and neither will it attempt to explicate every event or idea relevant to this topic. Instead, it will focus on what appears to be the most salient, recurring themes that characterize the Asian American experience in the legal field. More information about Asian American lawyers will likely be unearthed in later years, but I hope that this article will inspire more conversations about their impact and struggles in the meantime. 

Asian American Lawyers Throughout American History 

The first Chinese American licensed to practice law in the U.S. was Hong Yen Chang, born in Guangdong, China, who immigrated to America in 1872 as one of the 120 Chinese boys sent to study in the U.S. through the Chinese Educational Mission. Chang had arrived during a time of escalating anti-Chinese sentiment in America. One reason for such racial hostility included claims that the Chinese were inherently inferior, as demonstrated in the California Supreme Court’s 1854 ruling in People vs. Hall where Chief Justice John Murray wrote that the Chinese were “incapable of progress or intellectual development beyond a certain point, as history has shown.” As the number of Chinese immigrants working in America’s gold mines, factories, and agriculture grew, allegations from other laborers in America’s economy that the Chinese posed an economic threat further exacerbated racial tensions. Pressured by such xenophobia pervading the nation, the government eventually passed the Chinese Exclusion Act of 1882, which suspended skilled and unskilled Chinese laborers in mining from immigrating to the U.S. for ten years (and it would eventually be extended for another 10 years by the 1892 Geary Act, which also required all Chinese living in the U.S. to carry identification papers—which many observed were similar to “dog tags”at all times or suffer deportation). When Chang sought admission to the New York State Bar Association, the state’s Supreme Court rejected him since the Exclusion Act barred him from U.S. citizenship. But after Chang pressured the Association for two years, they eventually issued him a naturalization certificate and allowed him to reapply to the bar again. He was admitted in 1887. However, Chang was not as fortunate when he later moved to California, where the state’s Supreme Court deemed that his naturalization certificate from New York was invalid and thus rejected him from the bar. Chang was never allowed to practice law in California, although thanks to petitions from groups of law school students such as the Asian Pacific American Law Students Association, he was posthumously granted admission to the state’s Bar Association 130 years later in 2015. The first Chinese American lawyer in California wouldn’t emerge until nearly four decades after the Court’s decision in Chang’s case, when You Chung Hong, a son of Chinese immigrants, passed the state’s bar in 1923. He worked to repeal the Chinese Exclusion Act of 1882 that had obstructed Chang’s admission to the bar, testified in the U.S. Senate on immigration laws, and in 1933, became the first Chinese American permitted to practice before the Supreme Court. 

Alongside the Chinese Exclusion Act, the government also passed legislation thwarting South Asians from entering the U.S during this time. In 1917, the U.S. banned immigration from the entire Indian subcontinent through the Barred Zone Act. In the 1923 case, U.S. v. Bhagat Singh Thind, the Supreme Court ruled that Southeast Asians were ineligible for naturalization. An immigrant from Punjab, India, Dalip Singh Saund campaigned against these discriminatory policies. His efforts eventually resulted in Congress passing the Luce-Celler Act of 1946, which permitted more South Asians to immigrate to the U.S. and become U.S. citizens. After becoming a naturalized U.S. citizen in 1949, Saund was elected to Congress in the House of Representatives—and re-elected twice—thus becoming the first Asian American, Indian American, and first Sikh American to do so. 

More Asian American lawyers emerged during and shortly after the U.S.’ participation in World War II. For example, Minoru Yasui, a Japanese American lawyer, established a practice in Portland to help Japanese Americans affected by Executive Order 9066, by which President Franklin Delano Roosevelt authorized the internment of Japanese Americans and noncitizens from Japan. Yasui also refused to evacuate to an internment camp and was consequently sentenced to a year in prison. When he was released in 1944, he practiced law in Colorado, where he advocated for the Japanese community in America to receive reparations. During this time, Fred Korematsu, a son of Japanese immigrants, was arrested for resisting his displacement to an internment camp; this incident would eventually result in Korematsu vs. U.S. (1944), where the Supreme Court upheld Executive Order 9066—but nearly four decades later in 1983, Dale Minami, an Asian American lawyer, would reopen and help overturn this decision.

Furthermore, although they are often overlooked, Asian American lawyers directly served in America’s war efforts. Herbert Choy, a graduate of Harvard Law School, served in the U.S. Army Judge Advocate General’s Corps (from 1942-1946), which “represents the legal interests of soldiers and the U.S. Army,” according to the U.S. Army Judge Advocate General’s Corps brochure. When he returned to America, he became the first Korean American in the United States admitted to the bar. Another Asian American graduate of Harvard Law School, Hiram Fong, served as Judge Advocate in the U.S. Air Force, after which he became the first Asian American U.S. Senator from 1959 to 1977 from Hawaii and the first Asian American to receive delegate votes to be nominated for the President of the United States. 

Asian American lawyers also actively contributed to the social change movements that swept America in the 1960s—most notably, Patsy Mink, a third-generation Japanese American from Hawaii and graduate of University of Chicago Law School. Several years after being rejected from all jobs she applied to because of her interracial marriage, Mink became the first Asian American woman to serve in Congress when she won a seat in the U.S. House of Representatives in 1964. As a Congresswoman, Mink helped address the needs of the women’s rights movement through sponsoring the first childcare bill, in addition to passing the 1974 Women’s Educational Equity Act which allocated $30 million a year for programs in schools that promoted gender equality, improved women’s academic and job opportunities, and expunged gender stereotypes from educational curricula. She even co-wrote the Title IX law which stated that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Mink also championed educational reform more broadly as she pushed for legislation introducing bilingual education, in addition to introducing the first Early Childhood Education Act. 

Asian American Lawyers in the Modern Era

The population of Asian American lawyers has grown considerably since the 2000s. According to “A Portrait of Asian Americans in the Law,” a 2017 report published by Yale Law School and the National Asian Pacific American Bar Association and compiled by Eric Chung, Samuel Dong, Xiaonan April Hu, Christine Kwon, and Goodwin Liu, “the number of Asian American lawyers has grown from 20,000 [in 2000] to 53,000 [in 2017], comprising nearly 5 percent of all lawyers nationwide.” Additionally, the report establishes that over the past three decades, the number of Asian Americans enrolled in law school has nearly quadrupled to 8,000, demonstrating the largest spike of any racial or ethnic group—and that they are more likely to attend highly ranked law schools. But it also notes that most recently in 2016, the number of Asian American students entering law school in general was the lowest in more than 20 years. The report doesn’t attribute an exact reason for such a steep decline and recommends further research into this trendline. 

With respect to the numerous Asian American lawyers who are already in the field today, however, data from the report reveals that very few of them hold leadership positions in the legal profession. Of course, while Kamala Harris has become the first South Asian American Vice President, most Asian American lawyers in general struggle to become leaders. Although 7.05% of respondents in the Vault and Minority Corporate Counsel Association’s (Vault/MCCA) 2015 survey of 225 law firms were Asian American, the data indicated that only 2.09% of them had seats on executive management committees,  2.32% on partner review committees, and 3.78% on associate review committees. Moreover, few Asian Americans serve as state judges. Even in states such as Maryland and New York—both home to a significant number of Asian Americans—less than 1 percent of their state appellate or general jurisdiction trial judges were Asian American in 2014. Even fewer Asian Americans serve in supervisory positions at the federal level; the “Portrait” highlights that in 2016, there were only three Asian American United States Attorneys in office—out of all 94 available positions—with one in each of the following areas: Hawaii, Guam and the Northern Mariana Islands, and the Southern District of New York. Data from a 2014 survey in the “Portrait” also found that, out of the 2,437 elected prosecutors in the nation, only four were Asian American. Asian Americans also rarely serve in the higher ranks of academic administration at law schools. In 2013, only three Asian Americans were law deans out of the 202 in the country, and only 18 Asian Americans out of the nation’s 709 associate or vice deans. 

Why, despite demonstrating an overall and significant growth of lawyers, is there such a dearth of Asian Americans working as leaders in the law? A possible answer may include the model minority myth, which stereotypes Asian Americans as hardworking and “smart,” but too passive and socially inept to hold leadership positions. Indeed, in Elisabeth Frater’s article, “Asian American Attorneys: Shattering Conventional Norms,” Reed Smith Partner Min S. Suh confirms that “there is a perception, especially in the legal community, that Asian American lawyers are not suitable for management or leadership positions due to the stereotype that Asian Americans lack the personality to influence and lead others.” Joseph J. Centeno, a partner with Philadelphia’s Obermayer Rebmann Maxwell & Hippe, further buttresses this point: he adds that “in our society, to be a leader in any industry, you have to be bold, you have to take risks, and you have to be out there and network and create relationships with people… but Asian Americans [are often seen as] not being aggressive or assertive and being meek or sometimes a geek.” In the survey featured in the “Portrait,” many Asian American lawyers indicated that, throughout their experience in the legal profession, the most common traits that they were associated with at their jobs were “quiet,” “introverted,” “passive,” and “awkward.” Few to none of them reported that they believed they were seen as “assertive,” “extroverted,” or “loud.”

The misconception of Asians as perpetual foreigners in America may also account for another reason why Asian Americans struggle to further advance in the legal field. In the “Portrait” survey, one Asian American lawyer reported that “[she’s] an immigration lawyer. When [she] go[es] to immigration court, [she’s] mistaken for the alien.” Moreover, the Western fetishization of the sexualized, “exotic” Asian woman also poses significant obstacles for female Asian American lawyers that may thwart them from further elevating their legal careers. The same immigration lawyer from the “Portrait” survey mentioned above also revealed that “when [she] go[es] to jail to visit a client, [she’s] mistaken for their girlfriend.”  Another respondent in the “Portrait” survey explained that “being an Asian woman added another layer as men were often more interested in expressing themselves as romantic prospects as opposed to colleagues.” 

Moving Forward 

Sources confirm that Asian American lawyers have demonstrated outstanding progress since the 1880s, despite having once been barred from practicing law. Yet they continue to face significant obstacles in the profession. Although Asian American lawyers have helped shape, build, and change American law for nearly 200 years, they are still reduced to outdated, fictitious stereotypes that preclude them from becoming leaders in the field today. Now it is time for those not only in the legal field, but also the rest of America in general, to reflect on these realities and consider how we should move forward and treat our Asian American lawyers in the future to help them reach their full potential.