The First Ottoman History of International Law

NOBUYOSHI FUJINAMI THE FIRSt OttOman HIStORY Of IntERnatIOnaL LaW INTERNATIONAL LAW AND THE OTTOMAN EMPIRE The nineteenth-century international law was quite Christian-centric, despite its self-proclaimed universality.1 In the guise of a seemingly secular “standard of civilization,”2 the civilizational developments in the non-Christian countries were rarely acknowledged. This does not mean that all the Christian lawyers always discriminated against the non-Christians. Nor does it mean that the idea of secular international law had no influ- ence. One only needs to see the prestige Henry Wheaton’s Elements of International Law enjoyed in China and Japan.3 Nonetheless, it is unde- niable that international law often functioned as a convenient tool of Western imperialism.4 This makes the Muslim Ottomans’ interpretation of international law an interesting research subject not only for the Ottomanist historians but also for international lawyers. It was through the Muslim Ottomans’ FUJINAMI Nobuyoshi, Associate Professor, Tsuda College, Japan. 2-1-1, Tsuda-machi, Kodaira-shi, Tokyo, Japan. [email protected] 1 This article is based on my paper presented at the 66th annual conference of the Japa- nese Society for Western History, on 22 May 2016, held on Mita Campus, Keio University, Tokyo. I am grateful to Ozawa Minoru, Kudo Akihito, Kanazawa Shusaku, and Nishiyama Akiyoshi for their valuable comments. This work was supported by JSPS KAKENHI Grant Number JP25870154. 2 Gong, The Standard of “Civilization”. 3 Sato, Kindai Chugoku. 4 Anghie, Imperialism. Turcica, 48, 2017, p. 245-270. doi: 10.2143/TURC.48.0.3237141 © 2017 Turcica. Tous droits réservés. 246 noBuYoshi fujinami incorporation that European international law claimed its universality over non-Christian countries. In this process, however, the notion of Otto- man inferiority took a deep root among the Europeans. Many European jurists did not even feel the need to hide their Islamophobia.5 Some scholars have persuasively argued that the Muslim Ottomans were – just as today’s Muslim Middle Easterners – the “barbarians” par excellence, whose agencies were arbitrarily denied by Westerners.6 Consequently, Orientalist criticism has become a righteous subject in the field of international legal studies.7 Nevertheless, we still lack sufficient number of empirical studies that properly contextualize the Ottoman jurists’ theory and practice. In the context of international legal studies, indeed the Ottoman case has attracted the attention of scholars especially in relation to the Capit- ulations.8 However, they usually focus on the institutional frameworks or the specific diplomatic cases with an emphasis on the state’s behaviour; Ottoman intellectuals’ academic approaches to this field are yet to be explored. There are some preliminary bio-bibliographical surveys,9 but few studies inquire into the ideas of individual lawyers. Another question is the Ottomans’ imputed inferiority. Legal historians often contrast the Ottoman “failure” with the Japanese “success.”10 Japan was, however, not “barbarous” in the same sense as the Europeans regarded their nearest “enemy,” the Ottoman Empire, because the religions (more precisely, what the Europeans considered the equivalents of their own religion, Christianity) of these two states occupied different positions in the hierarchy of “world religions” that the Europeans invent- ed.11 In addition, as one of the longest-lived multi-ethnic empires in the world, with the universal Caliph at its head (and with the no less universal Ecumenical Patriarch as its subject), the Ottoman Empire preserved its own multi-religious tradition of universal rule.12 This is not the case in Japan. Because their early modern ancestors were devoid of any claim 5 Pitts, “Boundaries.” 6 Allain, “Orientalism and International Law;” Burgis, “Mandated Sovereignty?”. 7 Onuma, A Transcivilizational Perspective, esp. chapter 4. 8 Augusti, “From Capitulations to Unequal Treaties;” Özsu, “Ottoman Empire;” Özsu, “The Ottoman Empire.” 9 Erozan, “Türkiye’de Uluslararası İlişkiler Disiplininin Uzak Tarihi;” Yörük, “Kapitü lasyonların Kaldırılması;” Palabıyık, “International Law for Survival;” Aral, ‘The Ottoman ‘School’.” 10 Kayaoğlu, Legal Imperialism, for example. 11 Masuzawa, The Invention of World Religions. 12 Stamatopoulos, Το Βυζάντιο μετά το έθνος. the first ottoman historY of international law 247 for universal rule, the modern Japanese could accommodate themselves with the European-style civilization with relative ease.13 Moreover, unlike Japan, the Ottoman Empire had not been a simple outsider to droit public européen. No matter how quickly and conveniently the Europeans had forgotten this, the fact remained that the Christian states of the European continent had been closely interconnected with the Ottomans throughout the early modern period. In addition, Empire’s own non-Muslim subjects had pursued a close relationship with their Euro- pean coreligionists.14 It was impossible to write the Ottoman history without discussing the Ottomans’ role in the European history, while the Japanese, living far away from Europe, could simply add their role to the European narrative of world history, accepting the European prejudice against Islam. Therefore, widespread view that the Ottomans failed where the Japa- nese succeeded is too simplistic. The Ottoman Empire and Japan did not encounter the European modernity in the same manner. Nor was the Ottoman legal “school” a simple pre-history of later Turkish one, as today’s Turkish scholars tend to describe it.15 Different from their secular Turkish successors, Muslim (and indeed, also non-Muslim) Ottoman jurists learned and taught international law as an integral part of their entire legal domain, including the Islamic, Orthodox Church, and impe- rial constitutional laws. This urges us to study not only the practical performances in diplomacy, but also the question of how legal knowl- edges developed and worked, when we analyse the modern Ottoman case in the history of international law. In the context of Ottoman studies, on the other hand, it is now taken for granted that Ottomans struggled in order to remain independent through modernization not only politically but also ideologically. Ever since the late eighteenth century, the Ottoman Empire became the target of Great Power diplomacy. In particular, with the Berlin treaty of 1878, the Ottomans lost many territories: Serbia, Romania, and Montenegro gained independence and Bulgaria became autonomous. Cyprus was occupied by the British, while Bosnia-Herzegovina was to be adminis- tered by the Habsburgs. As if these were not enough, in the subsequent 13 Watanabe, Nihon Seiji Shisoshi. 14 Isom-Verhaaren, Allies with the Infidel; Kármán, Kunčević, The European Tributary States. 15 See, for an example of this approach, Aral, “An Inquiry.” 248 noBuYoshi fujinami years, Greece annexed Thessaly, Britain occupied Egypt, and Bulgaria practically annexed the province of Eastern Rumelia.16 Under such circumstances, it is the despotic rule of the Sultan-Caliph that achieved, at least to some degree, the badly needed political stability at home. At the same time, Ottomans continued to engage in the com- prehensive modernization projects, both institutional and ideological, which had been set in motion since the time of the Tanzimat reforms.17 In this process, as in the cases of Japan and China, international legal studies provided Ottomans with an ideological as well as practical tool for survival and resistance against the West. To understand this phenom- enon, a brief look at the transformation of law in the modern Ottoman Empire is in order. In the modern Ottoman Empire, few legal cases ended within the arena of domestic law. Because of the notorious Capitulations, many cases concerning non-Muslims were judged outside the reach of Ottoman authorities.18 This is because many non-Muslims, both Western and local, were always ready to benefit from extraterritorial rights, which they enjoyed either as foreigners or as protégés. Consequently, Ottoman offi- cials, on the one hand, were requested to have enough knowledge of international law in order to defend their rights within their own territory. On the other hand, they had to introduce a new legal system that would satisfy their European audiences and possibly prevent their intervention. As a result, the Tanzimat reformers attempted to modernize the entire legal system. European-style commercial, penal, and land codes were duly enacted and finally, in 1876, the written Constitution was promulgated. This procedure ushered a great transformation of what the Ottomans had considered law. In the past, at least theoretically, the Islamic jurispru- dences of each legal school (madhhab) had been applied all over the world, since these were the order of God as interpreted through the col- lective endeavours of lawyers (ulamas). Now the state imposed written codes, which had a limited scope within its own territory by the very nature of the state’s law making. Despite its “Islamic” appearance, the nineteenth-century Ottoman legislation was essentially secular.19 16 Yasamee, Ottoman Diplomacy. 17 On the power structure and policy agendas in this period, see Akarlı, “The Problem of External Pressures.” 18 See Kenanoğlu, Ticaret Kanunnâmesi, for how the Capitulationary regime mattered in Ottoman justice. 19 Bedir, “Fikih to Law.” For a comparison, see also Akiba, “Empires and the Shari‘a.” the first ottoman historY of international law 249

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