ハサン・フェフミ・パシャとオスマン国際法学の形成

Abstract

Nineteenth-century international law, as a product of the Christian West, took for granted that the Ottoman Empire and Islam were "barbarous, " while at the same time espousing the apparently secular principles of humanity and civilization. Then, in what way did Muslim Ottoman intellectuals accept international law after their adaptation to the sovereign-nation-state system and how did it change the Ottomansʼ perception of state and religion? The author of this article addresses this question by investigating one of the earliest and most important textbooks on international law written in Ottoman Turkish, namely, Hasan Fehmi Pashaʼs Telhisi Hukuk-ıDüvel. This book was strongly influenced by J. C. Bluntschliʼs Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt, which was widely influential during the latter half of the nineteenth century. This fact, however, does not mean that Hasan Fehmiʼs book blindly borrowed everything from Western notions of international law without considering Ottoman realities. On the contrary, Hasan Fehmi was quite conscious of how to defend the rights and interests of the Ottomans by utilizing such key concepts as humanity and civilization, hence his rejection of the capitulatory regime, embodied in the principle of extraterritoriality, that had treated the Ottomans as an exception to the general rule of international law and harmed the sovereignty of the empire. Interestingly, in so doing, Hasan Fehmi made almost no reference to the Islamic precepts on law and society, thus secularizing the very basis of the empire, the constitution of which had been regulated and legitimized by Islamic discourse for centuries. Consequently, Hasan Fehmi and his fellow Ottoman students of international law encouraged the younger generation to construct a secular vision of state, society and religion. In this manner, the Young Turk ideologies of subsequent years, which resulted in the fundamental transformation of the state and religion, had their origins in part in this kind of legal thinking, developed during the late Hamidian era.