Author: Harvard Law Review
Organization/Publisher: Harvard Law Review
Date/Place: January 11, 2021/USA
Type of Literature: Analysis
Word Count: 3400
Link: https://harvardlawreview.org/2021/01/the-hagia-sophia-case/
Keywords: Turkey, Hagia Sophia, UNESCO, Property law, Recep Tayyip Erdogan, Mustafa Kemal Ataturk, Waqf, Hanafi Fiqh
Brief:
For its Property Law section, the editors of Harvard Law Review analyze the July 10, 2020 decision by Turkey’s highest administrative court to reopen Hagia Sophia as a mosque, which in its review was the correct legal decision. The review explains the court’s reasoning and how modern Turkish law is required to “preserve” the legal status of Ottoman-era trusts and the intent of their endowers. The court explained that “according to the Turkish Civil Code both in 1934 and today, events preceding the 1926 adoption of the Civil Code are governed by Ottoman law.” Regarding whether its re-opening as a place of worship in any way violates its UNESCO status as a World Heritage site, the court reasoned that the UNESCO Convention “supported the full application of domestic law to a UNESCO site.” The authors found this determination to be compatible and comparable to sites such as Notre-Dame Cathedral and Westminster Abbey, both of which operate as places of worship while allowing visitors; they also noted that visitor admission to Hagia Sophia is now free, unlike Westminster Abbey. The judgement noted that a state has an obligation to ensure “trusts are used according to the endower’s intent” and to “avoid interfering with trusts.” It accordingly concluded that “there was no legal basis for the 1934 decision, which disregarded these duties and turned the Hagia Sophia into a museum.” The review offers additional reasons to support the re-opening of Hagia Sophia as a mosque, giving specific instances from Islamic jurisprudence, especially Hanafi Fiqh, as why conquest by force (which is also recognized in Western Law) is legal, and how “the Conqueror” Mehmed-II had even offered Constantinople’s Emperor Constantine XI the opportunity to surrender; but he refused. If Constantine had surrendered, Hagia Sophia might not have been converted into a mosque, as can be seen in nearby Galata where the ruler surrendered to Mehmed in exchange for security of its people and Churches. On why Hagia Sophia was a trust and could not be manipulated into some other purpose after being converted into a mosque, the reviewers identify that Hagia Sophia was public property under Ottoman law, and although the ruler and future rulers (including Mustafa Kemal) had rights over its use, as an “earmark trust” and according to Hanafi Fiqh, a mosque is a special case in which a sovereign cannot repurpose the trust, and “was not entitled to contradict its terms.”
By: Riyaz ul Khaliq, Non-Resident CIGA Research Associate
