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“The Sublime State would not act contrary to sharia and contrary to

promises”: Islamic Law, Customary Law, and Treaties in the Ottoman Empire

Will Smiley

Postdoctoral Research Associate, Dept. of Near Eastern Studies

Princeton University

Is Islamic law compatible with international law? This has been a

popular question in recent decades, for politicians, lawyers, activists, and

scholars alike, especially with regard to international human rights treaties.

Particularly intense discussion has focused on the status of children, and on

the question of apostasy. In Islamic law, religion generally passes from a

father to his children; and every school of interpretation forbids Muslims to

renounce the religion, demanding penalties as severe as execution for those

who do. Notable cases in Egypt, Yemen, and Malaysia, as well as the

infamous Iranian fatwā calling for the death of the author Salman Rushdie,

have led courts, politicians, and scholars to focus on conflicts between this

norm, and the freedoms enshrined in international human rights treaties

such as the International Convention on Civil and Political Rights, the

Convention on the Rights of the Child, and the Convention Eliminating All

Forms of Discrimination Against Women.1 1 For differing positions, see, e.g., Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, 5th ed. (Boulder, CO: Westview, 2013) (critiquing “schemes” that attempt to reconcile Islamic law and human rights); Kamran Hashemi, Religious Legal Traditions, International Human Rights Law and Muslim States (Boston: Martinus Nijhoff, 2008) (arguing that human rights can be promoted from within the Islamic legal tradition); Robert Spencer,

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**DRAFT—PLEASE DO NOT CITE OR CIRCULATE**

The question itself is, of course, an oversimplification, but it frames the

conversation—not only today, but historically. The history of international

law is typically written as a history of European, Christian ideas and

practices, with Muslims appearing primarily as the victims of that law, as it

was used to justify European imperialism. When historians do turn to the

Islamic legal tradition, it is often presented as a separate and competing

system,2 which was displaced as Muslim states were either conquered or

entered the modern international system. This narrative is particularly

pronounced in histories of the Ottoman Empire—the most significant Muslim

empire of the modern age, and a state that had a long history of political,

cultural, and economic relations with Christian states from the fourteenth

century right through the twentieth. The Ottomans are often thought to have

been excluded from an international legal system that denied their

sovereignty—and that of other non-Christian and non-white peoples—thus

justifying their subjugatin.3 Ottoman historians have long debated whether,

and when, the empire entered the European system of international law,

with the implicit or explicit assumption that this must have marked a sharp

ed., The Myth of Islamic Tolerance: How Islamic Law Treats Non-Muslims (Amherst, NY: Prometheus Books, 2005) (arguing for the fundamental incompatibility of Islamic law with human rights); Bruce P. Frohnen, “Multicultural Rights? Natural Law and the Reconciliation of Universal Norms with Particular Cultures,” Catholic University Law Review 52 (2002-2003), 40 (using Islamic law as an example of a clash between the practices of local cultures” and “universal principles of human rights”). 2 See, e.g., Stephen Neff’s discussion in Stephen C. Neff, Justice Among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014), 94–100. There is a significant of literature debating whether the Islamic legal rulings on relations between political powers, known as siyar, should be regarded as an alternative to or a forerunner of Western international law. The seminal work is Majid Khadduri, War and Peace in the Law of Islam (New York: AMS Press, 1979).3 See, e.g., Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University, 2005); Davide Rodogno, Against Massacre: Humanitarian Interventions in the Ottoman Empire, 1815-1914 (Princeton, N.J.: Princeton University Press, 2012), 36–62.

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break from its Islamic roots. Thus for historians, as for modern observers,

Islamic law and international law represent conflicting normative orders; to

embrace one is to discard the other.4

This article challenges that assumption, particularly in the Ottoman

Empire, by using primary sources from three separate archives to explore an

early conflict between international treaties and custom and the Islamic law

of apostasy.5 This offers a chance to ask, not whether the Ottomans were

“in” or “out” of the international legal system, but what rules each side saw

as binding, where those rules came from, and how various actors deployed

them.6 At the same time, it offers an Ottoman perspective on what

international law looked like in the eighteenth century. Jennifer Pitts has

recently argued that eighteenth-century British and French thinkers had a

more open, less exclusivist view of the law of nations than their nineteenth-

century counterparts; international law in the earlier era had the potential to

4 See, e.g., A. Nuri Yurdusev, ed., Ottoman Diplomacy: Conventional or Unconventional? (Basingstoke: Palgrave Macmillan, 2004); Mustafa Serdar Palabiyik, “The Emergence of the Idea of ‘International Law’ in the Ottoman Empire before the Treaty of Paris (1856),” Middle Eastern Studies 50, no. 2 (2014): 233–51; Tetsuya Toyoda, “L’aspect Universaliste Du Droit Internationale Européen Du 19ème Siècle et Le Statut Juridique de La Turquie Avant 1856,” Journal of the History of International Law 8 (2006): 19–37; G.R. Berridge, “Diplomatic Integration with Europe before Selim III,” in Ottoman Diplomacy: Conventional or Unconventional?, ed. A. Nuri Yurdusev (Basingstoke: Palgrave Macmillan, 2004), 114–30; Thomas Naff, “The Ottoman Empire and the European States System,” in The Expansion of International Society, ed. Hedley Bull and Adam Watson (Oxford: Oxford University Press, 1985); Rifa’at A. Abou-el-Haj, “The Formal Closure of the Ottoman Frontier in Europe: 1699-1703,” Journal of the American Oriental Society 89, no. 3 (1969): 467–75; Hugh McKinnon Wood, “The Treaty of Paris and Turkey’s Status in International Law,” American Journal of International Law 37, no. 2 (1943): 262–74.5 These are: Ottoman Turkish-language documents from the Başbakanlık Osmanlı Arşivi in Istanbul (Prime Minister’s Ottoman Archives, hereinafter BOA), French-language documents from the Habsburg Haus-, Hof-, und Staatsarchiv in Vienna (House, Palace, and State Archive, hereinafter HHStA), and English-language documents from the British National Archives in Kew, London (hereinafter TNA). All translations are mine unless otherwise indicated. I am indebted to Lela Gibson for providing me with copies of the Habsburg documents.6 For a discussion of such an approach, see John Fabian Witt, “A Social History of International Law: Historical Commentary, 1861-1900,” in International Law in the U.S. Supreme Court: Continuity and Change, ed. David L. Sloss, Michael D. Ramsey, and William S. Dodge (New York: Cambridge University Press, 2011), 164–87.

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be barrier to imperialism, rather than the justification for conquest it later

became.7 But did non-European intellectuals and diplomats, particularly in

the Muslim world, have a similar view? This paper offers a preliminary

approach to that question, from the perspective of the Ottoman Empire.

The incident occurred in 1791-1792, following the end of a three-year

war between two now-dead, but once powerful, empires: the Muslim

Ottoman Empire and the Catholic Habsburg Empire. The treaty that ended

this conflict primarily focused on the borders that would divide the two

empires’ territories in eastern Europe, but it also contained clauses

pertaining to the return of captives—and the stickiest issue was the status of

those, especially children, who might have changed their religion in captivity.

The debate which followed appears, at first glance, to have fit the

model of fundamental normative conflict: the Ottoman foreign minister,

Raşid Efendi, explained that the Sublime Porte (as Europeans called the

Ottoman government) could not comply with the Austrians’ interpretation of

the treaty, lest the public say amongst themselves “that we are relaxing on a

point of religion.”8 The second-highest ranking Islamic jurist in the empire, a

man named Tatarcıkzade Abdullah Molla Efendi, concurred: surely, the

Austrian ambassador must “know[] the fanaticism of our populace better

than we do.”9

7 See Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005); Jennifer Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117, no. 1 (2012): 92–121.8 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 54. Raşid’s title was Reisülküttap, or colloquially, Reis Efendi; this official was the empire’s chief scribe, but functioned as the de facto foreign minister in the late eighteenth century.9 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 65. Tatarcıkzade Abdullah’s title was Kazasker of Rumeli; literally, the military judge of Rumelia (Ottoman Europe).

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Yet, a closer examination of this debate reveals that both the Ottomans

and the Austrians approached this debate not as a fundamental conflict

between conflicting cultural values, but instead as a question of legal

interpretation. The Ottomans, especially, took Islamic law seriously as law—

authoritative and culturally important, but also replete with procedures,

exceptions, rules of evidence, hierarchies of norms, and interpretive

ambiguities—rather than as a simplistic, monolithic set of cultural values. In

dialogue with the Austrians, Ottoman diplomats and jurists used careful

reasoning and creative interpretation to determine how best to fit together

their commitments to Islamic law with their treaty obligations. I trace that

reasoning and interpretation in this paper, first laying out the particular legal

and historical conflict, before telling the story of the Ottoman-Austrian

negotiations, and then stepping back to compare the events of 1791 with a

better-known debate over apostasy in the 1840s. The debate, it turns out,

had much in common with contemporary European questions as the modern

international legal system emerged. The Ottoman Empire, and Islamic law,

did not look quite as exceptional or as alien to the international system as

one might expect.

I. Background

a. The Islamic Legal Framework

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Since much of this paper will refer to Islamic legal traditions, it is

necessary to summarize those traditions in three areas: slavery, conversion

to Islam (especially for children), and apostasy. The Islamic legal tradition,

including the lineage of thought and exposition (fiqh) of the Ḥanafî school

(which the Ottoman state preferred), has a vast and detailed body of rules

on slavery—rules now obsolete, but of considerable relevance in the

eighteenth century.10 In brief, the Ḥanafî school recognized the possibility of

Muslims enslaving the inhabitants of non-Muslim lands (the Domain of

War/Arabic Dār al-Harb) in the course of a holy war (jihad) duly declared by

the rightful authorities of Muslim lands (Domain of Islam/Arabic Dār al-Islâm).

Upon capture, enemy combatants and non-combatants alike could be

enslaved, but only if the legitimate ruler approved. This included children. In

the Ottoman Empire, the state owned a substantial number of slaves, but

many more were in the hands of private subjects, serving as servants,

concubines, galley rowers, laborers, and in other capacities.11

Conversion to Islam, whether for slaves or free people, is a fairly simple

process in Islamic law: one need only recite the Muslim confession of faith,

sincerely, in the presence of two competent, male, Muslim witnesses. In the

Ottoman Empire, however, conversion was more often defined by social

10 This paragraph is based on Y. Hakan Erdem, Slavery in the Ottoman Empire and its Demise, 1800-1909 (Basingstoke: Macmillan, 1996), x, 2-22; Mourdgea D’Ohsson, Tableau Genéral de l’Empire Ottoman vol. 5 (Istanbul: Isis, 2001), 85-105; M. Ertuğrul Düzdağ, ed., Şeyhülislâm Ebusuud Efendi Fetvaları Işığında 16. Asır Türk Hayatı (Istanbul: Enderun, 1972), 100-01; Ahmed Akgündüz, İslâm Hukukunda Kölelik-Câriyelik Müessesesi ve Osmanlı’da Harem (Istanbul: Osav, 1995), 113-20. 11 Will Smiley, “‘When Peace Is Made, You Will Again Be Free’: Islamic and Treaty Law, Black Sea Conflict, and the Emergence of ‘Prisoners of War’ in the Ottoman Empire, 1739-1830” (PhD diss., Cambridge, 2012), 18-27.

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behavior and recognition, rather than by strict observance of these legal

criteria.12 Islamic legal scholars laid out detailed criteria, in their fiqh

manuals, to deal with the question of when children could make a valid

conversion to Islam. The basic Ḥanafî standard was stated by the scholar

Ibrahim al-Halabi in the sixteenth century: “the [conversion to] Islam of the

mentally discerning child is valid.”13

Adulthood, for these purposes, was a three-step process. According to the

Ḥanafî scholar al-Sarakhsi, at about the age of seven, children gain the

capacity of “discernment” (Arabic ‘aql or tamyîz/Ottoman Turkish akıl or

temyiz)—the capacity to tell the difference between good and evil.14 In legal

theory and in Ottoman practice (at least, in the study conducted by Eyal

Ginio on the court records of eighteenth-century Thessaloniki), children

below that age followed their parents’ faith, and could convert to Islam only

if their parents did so.15 Children who had reached adolescence were

considered presumptively competent to convert; in Ottoman practice, this

generally meant that “when considering the conversion of adolescents above

the age of ten, judges (kadis) apparently assumed that they had fully

understood the meaning of their religious act,” and accepted their

12 Will Smiley, “The Meanings of Conversion: Treaty Law, State Knowledge, and Religious Identity Among Russian Captives in the Eighteenth-Century Ottoman Empire,” The International History Review 34, no. 3 (2012), 560-61. 13 Quoted in Eyal Ginio, “Childhood, Mental Capacity and Conversion to Islam in the Ottoman State,” Byzantine and Modern Greek Studies 25 (2001), 104 (translation mine). 14 Avner Giladi, “Ṣag̲h̲īr,” in Encyclopaedia of Islam, 2nd ed., eds. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, and W.P. Heinrichs (Leiden: Brill, 2012), available at http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0969 (accessed February 14, 2012); Avner Gil‘adi, Children of Islam: Concepts of Childhood in Medieval Muslim Society (Basingstoke: Macmillan, 1992), 52-53. 15 Ginio, “Childhood,” 101-02.

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http://www.brillonline.nl/subscriber/entry?entry=islam_COM-0969


conversions.16 In between, however, lay the “most problematic” age range:

those between seven and ten.17 The validity of a conversion to Islam

articulated by a child in this range turned on the question of whether that

particular child was possessed of discernment, requiring—in Gino’s study of

the Thessaloniki court records—at least a nominal investigation by the kadi.

Once converted to Islam, a person is to remain Muslim. Islamic legal

scholars, famously held, based on reported sayings of the Prophet

Muhammad (hadīth), that Muslims are forbidden to change their religion, to

apostasize (ridda).18 This applies both to native-born Muslims and to

converts. Those who leave Islam are known as murtadd (Arabic) or mürtedd

(Ottoman Turkish), and legally suffer a variety of civil disabilities, along with

criminal punishments. For men, the punishment is death; for women, the

Ḥanafî school of law (favored by the Ottomans) lays out a reduced

punishment: imprisonment, and beatings every three days, until repentance

and return to Islam. According to Ḥanafî fiqh, “discerning minors” and those

who accepted Islam by force, while drunk, in infancy, or in the absence of

reliable witnesses, were exempted from execution.19 In the Ottoman Empire,

the state almost never executed apostates, but officially stood by the

applicability of the death penalty into the nineteenth century—when the

16 Ibid., 110.17 Ibid., 104.18 The following summary is based on Rudolph Peters and Gert J.J. de Vries, “Apostasy in Islam,” Die Welt Des Islams 17 (New Series), no. 1/4 (1977 1976): 1-25. 19 Peters and de Vries, “Apostasy in Islam,” 5–6.

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British Ambassador Stratford Canning pressured the Porte into renouncing it,

as will be discussed below.20

b. Treaty Law

Canning’s demands were part of a larger trend of European diplomatic,

military, and political ascendancy in the nineteenth century, which

manifested itself through the commercial capitulations—“unequal treaties”

through which the Porte granted legal concessions to foreign powers.21

However, these were not the only treaties the Ottomans signed in the

eighteenth and early nineteenth centuries; between 1730 and 1830, the

Porte concluded peace treaties with not only Austria but also Russia, France,

and the UK,22 and treaties of alliance with Russia and the UK.23 This may have

been part of what Edward Keene has called a “treaty-making revolution”

from the 1790s onward.24 Indeed, Jeremy Bentham coined the term

“international law” (in place of “law of nations”) in 1789, and he later called

20 Ibid., 13; for a more detailed account, see Turgut Subaşı, “The Apostasy Question in the Context of Anglo-Ottoman Relations, 1843-44,” Middle Eastern Studies 38, no. 2 (2002): 1–34.21 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2010); Reşat Kasaba, “Treaties and Friendships: British Imperialism, the Ottoman Empire, and China in the Nineteenth Century,” Journal of World History 4, no. 2 (1993): 215-41. 22 For French translations of the Russo-Ottoman Treaties of the Prut (1711), Belgrade (1739), Küçük Kaynarca (1774), Jassy (1792), Bucharest (1812), and Adrianople (1829); the Franco-Ottoman Treaty of 1802; and the British-Ottoman Treaty of 1809, see Gabriel Noradounghian, ed., Recueil d’Actes Internationaux de l’Empire Ottoman (Paris: Pichon, 1897), I and II, passim.23 See ibid., vol. 2, passim.24 See Edward Keene, “The Treaty-Making Revolution of the Nineteenth Century,” The International History Review 34, no. 3 (2012): 475–500.

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for a grand project to codify customary international law, and to create

positive law on subjects hitherto unregulated.25

In accordance with the capitulations, the Ottomans had long banned the

enslavement of the subjects of states with whom it was allied. Enslaving

enemy subjects, however—most notably in wartime—was still legal.26 For

centuries, Russian subjects by the thousand had flowed into the Ottoman

Empire as slaves, part of a massive, trans-Black Sea human trafficking

operation fed by Crimean Tatar raids against eastern Slavic peasants in

modern-day Russia, Ukraine, Belarus, and Poland. The Ottomans and

Russians fought a series of wars in the eighteenth and nineteenth centuries,

nearly all ending in Russian victories.27 The Russians now sought to apply the

growing body of treaty law to free those slaves who had been legally

captured and brought to the Ottoman Empire. Beginning with the 1739

Treaty of Belgrade, the two states agreed to ban the payment for ransoms in

each subsequent peace treaty; all captives, after each war, were to be

released without they, their families, or their state having to make any

ransom payment to their owners. Every treaty before 1856 contained similar

terms—but every treaty also explicitly excluded those who had converted to

the religion of the captor state.28 Thus, Russian captives who, in captivity, 25 M.W. Janis, “Jeremy Bentham and the Fashioning of ‘International Law’,” The American Journal of International Law 78, no. 2 (1984), 414.26 This paragraph is based on Will Smiley, “Let Whose People Go? Subjecthood, Sovereignty, Liberation, and Legalism in Eighteenth-Century Russo-Ottoman Relations,” Turkish Historical Review 3, no. 2 (2012): 201–203; Will Smiley, “The Meanings of Conversion: Treaty Law, State Knowledge, and Religious Identity Among Russian Captives in the Eighteenth-Century Ottoman Empire,” The International History Review 34, no. 3 (2012): 561–62.27 See generally Virginia H. Aksan, Ottoman Wars 1700-1870 (London: Longman, 2007).28 The treaty terms are translated in Will Smiley, “‘When Peace Is Made, You Will Again Be Free’: Islamic and Treaty Law, Black Sea Conflict, and the Emergence of ‘Prisoners of War’ in

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accepted Islam, would remain in the Ottoman Empire, in the hands of their

owners. In the 1740s, and then again in the 1770s, the post-war captive

redemption process caused fierce three-way disputes between Russian

diplomats, the Ottoman state, and Ottoman slaveowners eager to retain

their human property.29

Through these discussions, which increasingly centered on principles of

legal interpretation,30 Russian and Ottoman diplomats struggled to define a

test for conversion to Islam which would simultaneously satisfy the Russians,

that Christian captives were not being forced to convert to Islam against

their will; the Ottomans, that new Muslims were not being returned to non-

Muslim lands; and both sides, that their financial and bureaucratic resources

were not being wasted through overly lengthy investigations or unnecessary

squabbles with slaveowners.31 By the 1770s, the two states had settled on a

simple definition and procedure for determining conversion: each captive

would be questioned about his or her faith, in the presence of an Ottoman

commissioner and a Russian dragoman (translator). Whatever faith the

captive professed at that moment, would be recognized, and would

determine his or her fate. This, then, was the state of Russo-Ottoman treaty

law in 1791, as implemented by custom—and both the treaty terms, and the

customary procedures, would be renewed in 1792, when the two states

signed the peace Treaty of Jassy.

the Ottoman Empire, 1739-1830” (PhD diss., Cambridge, 2012), 256–259.29 See Smiley, “Let Whose People Go”; Smiley, “Meanings of Conversion.”30 See Smiley, “Let Whose People Go.”31 This paragraph is based on Smiley, “Meanings of Conversion.”

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c. The Austro-Ottoman War of 1788-1791 and the Treaty of Sistova

The Treaty of Jassy ended a lengthy Russo-Ottoman war (1787-1792),

which had proved devastating and humiliating for the Porte. Due to an

alliance with Russia, the Habsburg Empire joined the conflict against the

Ottomans in early 1788—but, unaccustomed to fighting Ottoman forces,

after 50 years of peace with their Muslim neighbors, Habsburg forces quickly

suffered a string of defeats.32 Most notably, Ottoman forces broke into the

Habsburg Banat (now divided between Hungary, Romania, and Serbia), as

well as other lands. The Ottoman army carried off thousands of captives—

perhaps 36,000 Habsburg subjects were killed, were captured, or fled, while

the British Ambassador to Istanbul, Robert Ainslie, reported that 10,000

Transylvanians were sold into slavery.33 The Habsburg government officially

protested “the sale of Austrian Subjects taken by the Porte to an astonishing

number,” but to no avail.34

The Habsburgs recovered militarily, and soon had the advantage; they

captured Belgrade in 1789.35 The two sides signed a peace treaty at Sistova

(Svishtov in modern-day Bulgaria) on August 4, 1791. The agreement’s

seventh article echoed the long-established Russo-Ottoman terms on 32 For an account of the campaign from Habsburg sources, see Matthew Z. Mayer, “The Price for Austria’s Security: Part I—Joseph II, the Russian Alliance, and the Ottoman War, 1787-1789,” International History Review 26, no. 2 (2004): 257–99.33 TNA, FO 78/9 #40, Ainslie to London, Oct. 22, 1788; Michael Hochedlinger, Austria’s Wars of Emergence: War, State and Society in the Habsburg Monarchy, 1683-1797 (London: Longman, 2003).34 TNA, FO 78/10 #4, Ainslie to London, Jan. 22, 1789.35 Mayer, “Price,” 258.

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captives, requiring their return without ransom, except for “those in the

Sublime state who voluntarily accepted the religion of Islam according to the

observed customs, and those in the Austrian realms who became

Christian.”36

This clause seems to incorporate by reference the Russo-Ottoman rules

discussed above. And, indeed, Ottoman officials vividly remembered their

dealings with Russia on these matters; they noted in 1791 that “the vulgar

public” had come to hate Russia after the slave-redemption battles of the

1770s, and Selim himself noted in a rescript that the “Muscovite matter”

with regard to captives had caused much idle gossip among the people.37

Despite these misgivings, the Russo-Ottoman experience still provided

a useful body of precedents, which the two sides drew upon. Selim, explicitly

basing his orders on the practice after the last war with Russia, ordered that

one religious scholar and one member of the scribal service be appointed to

oversee the release of captives, and that a fixed token compensation of 100

piasters be paid to the owner of each freed slave.38 Soon the Austrian

ambassador, Peter Philipp Herbert, Baron of Rathkeal, requested that one of

his men accompany each Ottoman commissioner who would be sent to the

provinces to free captives.39

As the release process began, the Ottoman and Austrian officials

involved set about questioning captives, determining their faith, and 36 BOA, HAT 1407/57001, Council to Selim, est. 1206/1791-1792. A French translation is found in Noradounghian, Recueil, vol. 2, 9-10. 37 BOA, DVE 64:38, conference minutes and rescript, 17 Rebiülevvel 1206/Nov. 14, 1791.38 BOA, HAT 1401/56477, Council to Selim and rescript, est. 1206/1791-1792.39 BOA, HAT 1401/56456, Council to Selim and rescript est. 1206/1791-1792.

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transferring those who were Muslims into Austrian custody, in preparation for

sending them back to that empire. Much was at stake here: the Habsburg

state attached great importance to the release of its captives, but many of

them were in the hands of wealthy elites—indeed, one captured woman

about whom disputes arose was owned by the Grand Vizier himself, Koca

Yusuf Pasha.40 Both sides had important cards to play; Herbert-Rathkeal

repeatedly threatened that if the Ottomans did not comply, his state would

not return the captured Ottoman fortress-city of Hotin, as promised at

Sistova.41 Moreover, the Ottomans insisted that many of their own captives

remained in state or private hands in Habsburg lands, and led both sides to

demand or threaten an implementation of strictly reciprocal procedures for

the release of captives in each empire.42 But for the most part, they made

legal arguments, grounded on the proper interpretation of the treaty, rather

than the mere threat of reprisals.

II. The Question of Conversion

a. Allowing Apostasy?

40 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 67-68.41 BOA, CHR 2087, Council to Selim and rescript, est. 1206/1791-1792, p. 2; BOA, HAT 222/12423A, conference minutes, 8 Zilkade 1206/June 28, 1792; BOA, HAT 224/12484, Council to Selim and rescript, est. 1206/1791-1792; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 66.42 See HHStA, TII 97 BWV, Conference Protocols, Nov. 3, 1791 and Nov. 14, 1791, passim.

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The first question to arise was that of apostasy, in a conference held on

November 3, 1791, between Herbert-Rathkeal, his chief dragoman

(translator) Wallenbourg, the Ottoman Reis Efendi Raşid, and the Kazasker of

Rumeli (the chief judge of Ottoman Europe, the second-highest ranking jurist

in the empire), Tatarcıkzade Abdullah. Herbert-Rathkeal requested that

captives be interrogated in the presence of his own Dragoman, a demand

which brought a sharp reply from Raşid. Tatarcıkzade Abdullah proclaimed

that the Porte could not return captives who had converted to Islam, and

then retracted that conversion. Laying out the classical Ḥanafî approach to

apostasy, he exclaimed that those who converted on their own desire,

without force, and then again became infidels, must be executed if men,

and, if women, must be imprisoned until she decided to return to Islam.43

In reply, Herbert-Rathkeal first rehearsed an argument which he was to

make many times over the next several meetings: this was all fine and good,

he accepted, for Muslims, but he himself was governed only by the treaty,

and he could not consider “Mohammedan law,” nor could it govern his

actions.44 He maintained that if any captive declared that he or she had

accepted Islam through coercion, he “would always know this type as

Austrian,” and demand his or her return.45 There was no suggestion that the Ottoman

state itself forced captives to convert ot Islam, or that this was legal within the empire (it was

43 BOA, DVE 64:37, conference minutes, 6 Rebiülevvel 1206/Nov. 3, 1791.44 BOA, DVE 64:37, conference minutes, 6 Rebiülevvel 1206/Nov. 3, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 3, 1791.45 BOA, DVE 64:37, conference minutes, 6 Rebiülevvel 1206/Nov. 3, 1791. This claim is not found in the Austrian minutes.

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not). Instead, Rathkeal noted that he was concerned that private owners were forcing

conversions, in order to keep control of captives.46

Tatarcıkzade Abdullah may have realized this was a sensitive issue, and

he quickly sought to provide the Porte a legal escape hatch. He noted that

for the Ottomans, the treaty must conform to the sharia—a point which

would be extremely important in later discussions—but clarified that he had

referred only to those captives who had voluntarily accepted Islam.

Repeating (in Arabic) the Qur’anic injunction that “there is no compulsion in

religion,” (la ikrāha fī’il dīn / la religion est une chose . . . qui n’admet pas de

force), he admitted that those who converted by force had not truly accepted

Islam. Those who forced their captives to convert would be “discipline[d] and

punish[ed].”47 A few days later, Tatarcıkzade provided another legal rationale

to allow apostates to be returned. Those who converted by force, he

maintained, had become Muslims—but the fact that they had been coerced

saved them from the death penalty for apostasy; they would instead be

imprisoned. And once these captives were imprisoned, it was within the

discretionary authority of the Porte to decide to hand them over to the

Austrians.48 While Tatarcıkzade Abdullah appears to have changed his

position on whether coerced conversions were valid, both of his opinions

legally justified the same politically expedient action: releasing captives who

had converted, but who claimed coercion, and now wished to return to

46 BOA, DVE 64:37, conference minutes, 6 Rebiülevvel 1206/Nov. 3, 1791.47 BOA, DVE 64:37, conference minutes, 6 Rebiülevvel 1206/Nov. 3, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 3, 1791.48 BOA, DVE 64:38, conference minutes and rescript, 17 Rebiülevvel 1206/Nov. 14, 1791.

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Christianity and to the Habsburg Empire. This, in effect, allowed apostasy. On

this point, then, the Austrians won the day, and the two states followed

Russo-Ottoman precedent—the definitions of conversion adopted by those

two states had, since the 1770s, allowed captives to commit what was, in the

eyes of some Ottoman Muslims, apostasy.49

b. Procedures

A larger question remained, however: how were the two states to

determine the factual question of which captives had converted voluntarily?

The Russians and Ottomans had long agreed that captives would be

questioned about their faith in the presence of representatives from both

states.50 The Habsburgs and Ottomans adopted a similar procedure; captives

were brought into a room at the Grand Vizier’s complex (the Porte), and

asked to state their faith. But after two sessions of this, the Habsburgs began

to object, leading to a second conference between the ambassador and the

Reis Efendi and Kazasker of Rumeli on November 14.51 Herbert-Rathkeal

complained that slaves were interrogated by Ottoman officials, with their

owners holding them by the hand, in a room filled with a crowd of Ottoman

bystanders who caused disorder.52 He demanded that in the future, captives

49 See Smiley, “Meanings of Conversion,” 568-69.50 See Smiley, “The Meanings of Conversion.”51 BOA, DVE 64:38, conference minutes and rescript, 17 Rebiülevvel 1206/Nov. 14, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 51-73.52 HHStA, TII 97 BWV, Nov. 14, 1791 Conference Protocol, pp. 51-52; BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791.

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be questioned by his own agents, and that the public be excluded from the

audience chamber.53

After lengthy discussions, the Ottomans agreed to exclude bystanders

from the room, and to separate slaves from their masters before questioning

them.54 They would be questioned jointly by the Habsburg commissioner, M.

de Raab, and by two Ottoman officials: Arabzade Arıf Molla, one of the

religious scholars (collectively known as the ulemā) and former chief judge of

the old city of Istanbul; and Kambur Mustafa Bey, a member of the scribal

service (collectively known as the ricāl).55 Those captives who “purely and

simply” professed Christianity would be given to the Habsburg

commissioner, M. de Raab, while those who had “freely and voluntarily”

(emphasis in original) embraced Islam would be returned to their owners.56 If

there was any doubt about the validity of a captive’s confession, he or she

would be detained for further investigation.57

c. Evidence

By deferring this investigation, the two sides avoided an even thornier

question: what evidence would be used to judge these “dubious” captives’

53 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 51-52.54 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 71.55 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791; BOA, HAT 222/12423, conference minutes, 8 Zilkade 1206/June 28, 1792; HHStA, TII 97 BWV, Nov. 14, 1791 Conference Protocol, p. 71. Arabzade Arıf went on to become Kazasker of Anatolia, and then of Rumeli, later in Selim’s reign, and was Şeyhülislam for 25 days in 1807 under Sultan Mustafa IV.56 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 71.57 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 71.

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confessions? This was a vital matter because some captives had

instrumental incentives, in both directions, to confess Christianity or Islam:

Christianity, to return home; and Islam, to stay in the Ottoman Empire and

make a new life outside the bounds of peasant life or military service in

Austria. On this point, the discussions on the 14th nearly broke down, as the

two states’ differing conceptions of Ottoman society and Ottoman slavery led

them to adopt different positions on the admissibility of witness testimony. It

might be, Raşid suggested, that a slave who had previously converted and

lived as a Muslim in every way would, upon questioning, declare him or

herself a Christian in order to gain release, even as his or her master

certified that the captive had converted voluntarily.

Herbert-Rathkeal insisted that such captives must be considered

Christians, and handed over to him.58 He refused to recognize any captive’s

conversion before this moment as voluntary, because until examined by the

Habsburg dragoman, all were “under coercion” (sous la force), and he

“consider[ed] their words and actions [to be] from coercion” (kavl ve falını

cebrden add ederim).59 The Austrians, in short, considered any conversion to

Islam made while a captive was in Ottoman custody to be presumptively

coerced. Indeed, Herbert-Rathkeal felt that active intervention was required

to counter the coercion inherent in Ottoman society; he demanded that his

dragoman be allowed to speak, in German, into the ear of each captive

before their interrogation—to reassure them that they could confess 58 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 70.59 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 70.

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Christianity freely.60 Ottoman officials, not surprisingly, disagreed,

contending that just as slave owners could not influence captives’

confessions, so Austrian officials must not. This suggestion drew an indignant

response from Herbert-Rathkeal, who insisted that “the man appointed by be

cannot be treated as equal with the slave owner.”61 Raşid then clarified his

broader point: he sought to preserve neutrality—a position Herbert-Rathkeal

could not accept, because he viewed slaves as coming from an inherently

disadvantaged position. If Ottoman society was inherently coercive, then

captives needed active help.

Herbert-Rathkeal’s dim view of Ottoman society echoed broader European

doubts about the integrity of Ottoman law—doubts which fueled the creation

of parallel legal systems through the commercial capitulations.62 And

Herbert-Rathkeal’s suspicions extended beyond the question of slave

owners’ roles in their captives interrogations. He also rejected one of the

most fundamental principles of the Islamic legal tradition: the evidentiary

importance of two competent, trustworthy male Muslim witnesses. Even if,

Herbert-Rathkeal insisted, two such witnesses testified that a given slave

had converted to Islam, and had now apostasized, this evidence was

inadmissible against the captive’s claim now to be Christian.63 Raşid claimed

that proof by such witnesses was “a requirement of the sharia.” 60 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 52-55.61 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791; see also HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 55.62 See Maurits H. van den Boogert, The Capitulations and the Ottoman Legal System (Leiden: Brill, 2005).63 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 70-71.

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He attempted to convince Herbert-Rathkeal through a hypothetical: what

if, he asked, a captive did officially confess, at the proper moment, to being a

Muslim—but then later apostasized? Would the ambassador accept the

captive’s execution as an apostate in that case?64 “Obviously,” Herbert-

Rathkeal rather remarkably agreed, because “[a]fter once being

interrogated, certified as Muslim, and handed over to his owner, this captive

would leave behind Austrian-ness. The Sublime [Ottoman] State can do

whatever it likes in the case of this captive.”65 Still, he insisted on the

fundamental importance of the one official interrogation. So Raşid presented

a new hypothetical: suppose Herbert-Rathkeal’s dragoman, Wallenbourg, a

Christian entitled to protection under the capitulations, owed money to

Raşid, a Muslim. If Raşid filed suit in an Ottoman sharia court, Wallenbourg

would have to appear, and if he denied the debt, Raşid could secure a

judgment against him, before a sharia court, on the word of two witnesses.66

Raşid used this example to demonstrate that in all “litigated and doubted

cases” between Christians and Muslims, “the testimony of two impartial and

indifferent persons” was accepted—so why not here?67 Herbert-Rathkeal

struggled to provide a legally convincing answer, and eventually asserted

what sounds like an early definition of the difference between private and

public international law: Raşid’s examples, he contended, were inapposite

64 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/Nov. 14, 1791. This exchange does not appear in the Austrian minutes.65 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791.66 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791.67 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 70.

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because they related to “the affairs of individuals, but not those of [one

imperial] court to [another] court[.]”68

This debate was not simply confined to the rather narrow issue of the

admissibility of witness testimony; fundamentally, it raised a broader point—

a point which had arisen already on the question of apostasy, and which was

to become even more important in subsequent discussions. What was the

status of Islamic law? The Ottomans invoked it both to justify the importance

of witness testimony, and for unspecified other procedures; Raşid declared

that “we must always consult [the law], [and] apply it. It is thus, that in the

execution of the article of the treaty, the Grand Seigneur [sultan] has

expressly involved an Oulema [alim; man of religious learning] so that he will

ensure that the law is fulfilled in everything.”69 Herbert-Rathkeal consistently

objected to such assertions.70 If the Porte had wanted to incorporate Islamic

legal principles into the treaty, he contended, it should have done so “not at

the moment of execution [but] at the time of the negotiation of the peace.”71

Unless Islamic law were positively enacted by the treaty, Herbert-Rathkeal

argued, it was irrelevant.

Moreover, he pointed out that an Ottoman ‘ālim, İsmet Bey, had been

present at Sistova for the negotiations, and had ensured that the treaty was

compatible with the sharia.72 Thus, “at the Sistova conference these

68HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 71; BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791.69 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 55.70 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 51-52.71 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 56.72 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 56.

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[matters] ended.”73 Even if, Herbert-Rathkeal seems to have been saying,

the treaty did violate Islamic law, and even if that mattered, the Ottomans

had nonetheless lost their chance to object when one of their religious

scholars approved the text.

Tatarcıkzade Abdullah was unconvinced, and insisted that Islamic and

treaty law ought to comport with each other; the Ottoman state simply

“cannot undertake a matter which it is not possible to conform to the

sharia.74 This was precisely why “a jurist” (un Legiste) like İsmet Bey always

attended peace conferences.75 This view went all the way to the top; even

Sultan Selim III (who did not discuss the legal details), noted in a rescript that

“Certainly, the Sublime State would not act contrary to Islamic law and

contrary to promises.”76 Treaty law and Islamic law could not conflict, and did

not conflict; the latter could inform the former.

This put the Ottomans and Austrians fundamentally at odds, but they

avoided a breakdown in negotiations on November 14th, as Raşid seems to

have given way on the issue of witnesses. Their testimony would not

overcome captives’ own confessions of faith.

III. Children

73 BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791.74 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 56; BOA, DVE 64:38, conference minutes, 17 Rebiülevvel 1206/14 Nov., 1791.75 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 56.76 BOA, DVE 64:38, Council to Selim and rescript, est. 1206/1791-1792.

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Neither state, however, believed that every person’s religious choices

were valid. If a confession of Islam changed one’s status as a captive, then

could children’s confessions be recognized, keeping them in captivity? The

Russians and Ottomans had settled this question with a bright-line test: the

conversions of children below the age of either ten or twelve (which was

chosen is unclear) would not be valid; those of older children, would be.77 But

would this extend to Habsburg-subject children?

The question arose in the November 14 meeting in discussing the cases of

two boys, who had been detained after the first two questioning sessions

because their faith could not be resolved.78 Their individual circumstances

were soon forgotten, however, as Raşid, Tatarcıkzade Abdullah, and Herbert-

Rathkeal debated the larger question of children’s status in general.

Tatarcıkzade Abdullah began by explaining that, in the Porte’s view,

children under the age of seven, provided they were in the custody of their

parents and those parents confessed Christianity, would be handed over. If

either parent had converted to Islam, the children would stay, as would

orphans. Children of seven or older would be questioned about whether they

remained Christian, or had converted to Islam.79

Herbert-Rathkeal would have none of this. He feared, according to Ainslie,

“cases when a christian Child either intimidated by threats, or seduced by

caresses, is induced to profess what it cannot understand, and by such

77 Smiley, “Meanings of Conversion,” 567.78 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 60.79 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 60.

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means torn from its Parents, and lost to its Country and Religion.”80 Thus,

Herbert-Rathkeal insisted, every child below the age of reason must be

returned without being questioned—and he set the “age of reason” (l’age de

la raison/hadd-ı temyîz/na-bālığ) at 15.81 If this was not done, he would not

consider the Porte to have fulfilled its treaty obligations. Raşid, however, saw

an opening. Picking up a copy of the treaty, he slyly asked Herbert-Rathkeal

if this claim were made “by virtue of the treaty, or arbitrarily”? Why,

certainly by virtue of the treaty, Herbert-Rathkeal replied.82

This was the opening Raşid had hoped for. The treaty, he pointed out, did

not mention children, and required the return of all captives.83 So, the

exemption for converts applied to all as well—meaning that, if taken literally,

the treaty required that every captive, of any age, even three-year-olds,

must be questioned about his or her faith.84 But he informed Herbert-

Rathkeal (perhaps smirking as he did so), “here it is the Law which is more

favorable to Mr. the Intern[uncio/ambassador] than the Art[icle of the

treaty].”85 In other words, Islamic law would require more captives to be

considered unconverted, and returned, than would a literal interpretation of

the treaty. Tatarcıkzade Abdullah explained why: young children were, by

the sharia, subject to the religious choices of their parents. So, “if there are 80 TNA, FO 78/12A #29, Ainslie to London, 25 Nov., 1791.81 BOA, CHR 2087, conference minutes, 12 Rebiülahir 1206/Dec. 9, 1791, p. 1; BOA, HAT 224/12484, Council to Selim and rescript, est. 1206/1791-1792; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 60-61.82 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 61. 83 BOA, HAT 224/12484, Council to Selim and rescript, est. 1206/1791-1792; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 61.84 BOA, HAT 224/12484, Council to Selim and rescript, est. 1206/1791-1792; HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 61.85 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 61.

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children who are less than seven years old who have mothers [with them],

and if they [the mothers] persist in their Christianity, the child is also subject

to the mother.”86

Raşid and Tatarcıkzade Abdullah probably saw this as a conciliatory point,

but they likely also had an ulterior motive: if Herbert-Rathkeal would agree

to modify the literal wording of the treaty in part based on Islamic legal

principles, perhaps this would serve as a precedent for the Ottomans to rely

on Islamic law in other contexts. In fact, Herbert-Rathkeal was not reassured

by this argument, because he did not accept that the original wording of the

treaty did, in itself, allow the Ottomans to retain converted captives of all

ages. The requirement that conversion be voluntary, he contended,

inherently excluded children from being considered to have converted,

because no one below the age of 15 could convert voluntarily.87 There was

no need to specify an age limit, because it was inherent in the word

“voluntarily.”

Herbert-Rathkeal used an analogy to prove his point: undoubtedly, the

conversion of a captive who was a “fool” (fou), who has no more “will”

(volonté) than a child, would be rejected, even though the treaty said

nothing about the mentally handicapped. But Tatarcıkzade Abdullah had an

answer for this point, too: Islamic law provided rules for their conversion, as

it did for children—so he implied, the denial of conversion to the mentally

86 BOA, CHR 2087, conference minutes, 12 Rebiülahir 1206/Dec. 9, 1791, p. 1.87 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 61.

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handicapped was based on Islamic law; it did not give the Austrians a license

to import other assumptions into the wording of the treaty.88

Herbert-Rathkeal repeated his by-now familiar refrain that he paid no

attention to Islamic law, so Raşid took a different tack: what possible

meaning could the treaty have, if not to require that all captives be returned,

except for converts, with no consideration given to age? He and Herbert-

Rathkeal each contended that they could not possibly know the intent of the

other state in accepting these terms, but ultimately their disagreement came

down to a technical, textual point: did the treaty’s careful efforts to specify

that all captives would be returned, also apply to the conversion exception?

Or was the conversion exception modified principally by the requirement of

voluntariness, which implicitly excluded children (and fools)?89

So the debate went, back and forth. Herbert-Rathkeal threatened to refer

the matter to Vienna, and suggested that the Habsburgs would not return

the fortress of Hotin—which they had committed to do in the treaty—unless

the article were fulfilled to their satisfaction.90 At this Raşid asked, “if we

fulfill the literal text of the article, will the Imperial court refuse to recognize

its execution?”91 If the Austrians were determined that the return of all

children, without questioning, under the age of 15 was truly non-negotiable,

why had they not “established something positive[ly] during the drafting of

this article concerning children”?92 Herbert-Rathkeal’s answer clarified 88 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 62.89 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 62-64.90 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 65-66.91 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 66.92 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, p. 66.

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precisely what was at stake here: “By the same reason,” he replied, that

nothing in the treaty referred to fools: the treaty was believed to be informed

by “general principles.”93 This sounds like an invocation of natural law, as the

Austrians saw it.

The two sides left the matter there on November 14th, but they were still

far from an agreement. Nearly two weeks later, on November 25th, Ainslie

reported to London that the principal problem, he had heard, between the

Austrians and Ottomans on the captive question was “in fixing the age when

a profession of faith can be admitted as binding, and which the Turks

assimilate [with] their ceremony of circumcision, performed when their

children attain their sixth or seventh Year.”94

At some point in late November or early December, the Ottomans decided

to convene a panel of legal experts to bolster their position. Tatarcıkzade

Abdullah met with the Şeyhülislam and other scholars. “So that the state

officials would have certainty,” (memurlara sened olmak içün), the

Şeyhülislam issued a fatwā.95

An undated Ottoman report indicates that Herbert-Rathkeal was,

unsurprisingly, not persuaded by this legal opinion,96 but Ainslie reported on

December 12th that those under seven “will be accounted of the Mother's

faith,” while “the simple declaration of Mahometism, of those above that 93 HHStA, TII 97 BWV, Conference Protocols, Nov. 14, 1791, pp. 66-67.94 TNA, FO 78/12A #29, Ainslie to London, Nov. 25, 1791. 95 BOA, CHR 2087, conference minutes, 12 Rebiülahir 1206/Dec. 9, 1791, p. 1. Joshua White has pointed to the şeyhülislam’s prominent, though somewhat different, role in sixteenth- and seventeenth-century Ottoman diplomacy. See Joshua M. White, “Fetva Diplomacy: The Ottoman Şeyhülislam as Trans-Imperial Intermediary,” Journal of Early Modern History 19, no. 2–3 (2015): 199–221.96 BOA, CHR 2087, conference minutes, 12 Rebiülahir 1206/Dec. 9, 1791, p. 1.

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age, is to be admitted as valid.”97 A later Ottoman document confirms that

the release process proceeded along these lines for at least some time,

although Herbert-Rathkeal continued to protest periodically.98 The Ottomans,

it seems, won this round.

IV. The Fatwās

In this context of international diplomacy, the Porte turned to the

Şeyhülislam. Although the Ottoman report mentioned only one fatwā, the

same archival file contains three questions and answers, all clearly

pertaining to this controversy. A detailed examination of these fatwās will

demonstrate the creative ways in which they deployed Islamic law, and will, I

contend, suggest that they were intended to support the Porte’s religious

legitimacy and state interests in dialogue with two different audiences: not

only Austrian diplomats, but also Ottoman Muslim slaveholders.

a. The Text

For ease of reference, I have assigned the numbers (1) through (3) to these

fatwās, though the file does not index or prioritize them.

97 TNA, FO 78/12A #31, Ainslie to London, Dec. 12, 1791.98 BOA, HAT 1409/57256, Council to Selim and rescript, est. 1206/1791-92.

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(1)Upon the making of peace between the Islamic ruler and one of the

groups of the People of War [non-Muslims], if by necessity they agree

to exchange the captives taken by the two sides, [and there is] a child

who was enslaved with his parents from the Domain of War [non-

Muslim territory] and imported to the Domain of Islam, and his/her

parents have not been honored with the glory of Islam [i.e. converted

to Islam,] is it lawful for the aforementioned child to be returned [in the

captive exchange]? Answer: It is [lawful].99

This fatwā is fairly straightforward, and seems designed to legitimate the

Porte’s position in discussions with slaveowners. It casts the return of

captives in classical Islamic terms, referring to the Domains of War and

Peace (Dār al-Harb and Dār al-Islam), and using the term müfādāt for a

ransom or exchange of captives.100 This is a term never used in any other

documentation related to military captives,101 and its use was likely intended

to change the register of the fatwā’s language, making it more erudite and

authoritative.

(2)After Zeyd, a child, was, together with his parents, enslaved and

imported to the Domain of Islam, Ömer buys Zeyd and his parents

together, after which, if Zeyd’s parents die without having been

99 BOA, CHR 2087, fatwā copy, p. 3, est. 1206/1791-1792.100 Redhouse Yeni Türkçe-İngilizce Sözlük (Istanbul: Redhouse, 1968), 813.101 This statement is based on over a thousand Ottoman documents reviewed while researching my dissertation.

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honored with the glory of Islam [i.e. converting to Islam] while he is

[still] in his childhood, his true parents having died, [and Zeyd being]

dependent on [Ömer’s] household, would it be considered that Zeyd is

a Muslim? [Answer:] It would not be.102

Fatwā (2) relates directly to the question of orphaned captives, a point

which arose in the November 14th meeting between Raşid, Tatarcıkzade

Abdullah, and Herbert-Rathkeal. It was, most likely, intended to support the

Porte’s policies when liberating the orphaned children in the hands of

Ottoman slaveowners. If shown to Herbert-Rathkeal, it may have also served

Raşid’s project of arguing that Islamic law was more favorable to the

Habsburgs’ position than the treaty, on certain subjects, as discussed above.

And yet, the opinion actually contradicted Tatarcıkzade Abdullah’s statement

of fiqh: he had said that orphaned children in the custody of Muslim owners

were considered Muslims. This contradiction is confusing, and unfortunately

remains opaque. The most logical explanation is that the Porte had asked

the Şeyhülislam to find a way around the general principles stated by

Tatarcıkzade Abdullah, but this is impossible to corroborate in the absence of

any proof texts.103

102 BOA, CHR 2087, fatwā copy, p. 4, est. 1206/1791-1792.103 I am continuing to investigate this point.

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(3) Zeyd the Christian [has a] six year-old, not [yet] mentally discerning

son, Ömer, and if the child comes [i.e. converts] to Islam, would it be

considered that he is a Muslim? [Answer:] It would not be.104

This opinion, the briefest of the three, is also the most intriguing, as it

suggests the legal maneuvers necessary simultaneously to advance the

Porte’s interests, to attempt to satisfy the Austrians, and to conform to the

Islamic legal tradition. This fatwā was most likely the one which Tatarcıkzade

Abdullah showed to Herbert-Rathkeal, in an attempt to convince him of the

Porte’s position. It showed, as Tatarcıkzade Abdullah and Raşid argued, that

Islamic law agreed with the Austrians, and that it was a better guide than the

literal wording of the treaty: it would require young children to be returned

without being questioned.

However, the inclusion of the other two fatwās suggests that, they were

also prepared with domestic audiences in mind. Taken together, the three

opinions present a progression from easier to more difficult questions:

captured children can be returned along with their Christian parents; they

can be returned even if they are orphaned; and, if they are young enough,

they can be returned even if they confess Islam. These opinions would have

been useful tools in the legal arsenal of the Ottoman commissioners in

dealing with slaveowners.

104 BOA, CHR 2087, fatwā copy, p. 5, est. 1206/1791-1792.

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b. Analysis

What the fatwās, especially the last one, do not say, however, is as

interesting as what they do say. For both Austrian and domestic audiences, it

would have made sense to complete the analysis by preparing a fourth

opinion, asking about the status of children above six years of age who

converted to Islam. Such an opinion could have helped convince the

Austrians that Islamic law did not allow the return of such captives if they did

convert; and it could have helped convince slaveholders that the Porte had

not bowed to foreign pressure—that it was determined to uphold legally valid

conversions to Islam. But there is no indication of a fourth fatwā. Why?

Since we do not even know if there was a fourth fatwa, any answer must

be speculative. But it is possible that the Porte would not have liked the

answer, so it decided not to ask the question. As discussed above, Ḥanafî

fiqh and Ottoman practice held that children below the age of six or seven

did not possess the necessary mental capacity to convert to Islam. Thus, the

Porte’s position on young children, below the age of seven, was entirely

consistent with the Ḥanafî tradition. For older children, however, neither the

Austrian nor the Ottoman official position in the November negotiations

comported with fiqh.

This was because, while both sides disagreed about the age at which a

child’s confession of faith would be valid, both agreed that there should be a

bright line: below a given age, no person’s conversion would be recognized;

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above that age, any person’s conversion would be recognized. But the Ḥanafî

tradition did not recognize such a rule; instead, for children between the

ages of seven and ten, it provided a standard—“discernment.” If the

Ottomans were to follow tradition, every captive child between these ages

would have to be subjected to an individual examination and investigation,

to determine if he or she was competent to convert.

Eyal Ginio has shown, through a study of an early eighteenth-century

case, that this was not merely a matter of legal theory.105 A Greek boy was

enslaved in the course of a revolt in the Morea/Peloponnesus, but the Porte

ordered him freed as a favor to the British, because the boy’s father was an

employee of that state’s consulate in Thessaloniki. The city’s kadi, however,

convinced the Porte to reverse its decision, and to order the child returned to

his owner, on the grounds that the boy had converted to Islam. He was eight

years old at the time, and, in keeping with the Ḥanafî tradition, “after several

investigations,” the judge “was convinced that the child had decided to

embrace Islam in full comprehension and of his own choice.”106 In general,

Gino contends, “this case demonstrates that during the eighteenth-century

[sic] the court could not approve the independent conversion of discerning

minors unless it could be convinced—even if fictively—that the conversion

was effected in pursuance of a genuine conviction on the part of the

convert.”107

105 This case is drawn from Eyal Ginio, “Childhood, Mental Capacity and Conversion to Islam in the Ottoman State,” Byzantine and Modern Greek Studies 25 (2001): 108–10. He relied on the Islamic court records of Thessaloniki.106 Ibid., 109.107 Ibid., 109-10.

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In 1791, however, neither the Austrians nor any Ottoman official ever

raised the possibility of investigating each child’s mental capacity

independently. There were probably two main reasons for this: the Austrians,

for their part, would certainly not have trusted the factual findings of any

Ottoman kadi. Indeed, as has been seen, Herbert-Rathkeal objected even to

Ottoman officials simply questioning adult captives about their faith, and

repeatedly protested about their conduct.108 Ainslie, too, distrusted Ottoman

officials, writing that the questioning of captives, “as it is performed in a

publick manner and in presence of Commissaries, one of whom is of the

Corps of the Ulemah or Turkish Clergy, cannot fail to administering to

frequent altercations.”109 Western Europeans’ lack of faith in the Ottoman

judiciary was endemic in the late eighteenth century, and was a major

reason why these states insisted on the right to remove litigation between

their merchants from Ottoman courts.110 As noted above, Herbert-Rathkeal

simply did not trust Ottoman society, and he would never have consented to

allow kadis to make difficult judgments about particular children’s states of

mind, and a bright-line rule based on age avoided the need to fight this

battle.

But such a rule also served the Porte’s own interests more directly.

Individualized investigations of hundreds or even thousands of captives

would be extremely time-consuming and difficult for the Ottoman

108 See, e.g., BOA, HAT 1409/57256, Council to Selim and rescript, est. 1206/1791-92; HHStA, TII 97 BWV, Conference Protocol, Nov. 14, 1791, passim.109 TNA, FO 78/12A #29, Ainslie to London, 25 Nov. 1791.110 See generally van den Boogert, Capitulations.

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commissioners. As I have argued elsewhere,111 the Porte had tried, ever since

the basic terms of the prisoner-release process had been set in 1739, to

simplify the definition of conversion for adults. Formal definitions sought to

make the complicated, individualized facts of conversion “legible” to outside

officials who were unfamiliar with slaves’ and owners’ communities, and

unwilling to take the testimony of either group at face value.112 A bright-line

rule for children, based on age, was consonant with the same overall project.

This may suggest, then, why the Porte did not request a fourth fatwā,

inquiring about the status of a child of, say, eight or nine years. The

Şeyhülislam would have been bound by fiqh to answer, not with a simple

“yes” or “no,” but with an answer of “it depends.” In order to avoid departing

from legal tradition, he would have had to mandate an investigation in such

cases, which would not have served the Porte’s interests vis-à-vis either its

domestic constituency or its foreign interlocutors.

Re-reading fatwā (3) with this in mind, the wording of the question

appears very careful and strategic indeed. Fatwās answer questions of law,

not of fact, and the Şeyhülislam (unlike other muftîs) sometimes ruled based

on hypothetical fact patterns, rather than on actual cases or controversies.

This mean that, in theory, the Porte could carefully pick and choose the facts

to provide, in order to steer the Şeyhülislam’s answers—and here, it may

111 Smiley, “Meanings of Conversion.”112 Ibid., 564, 567–68. The term “legibility” is drawn from James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven: Yale University, 1998), 2-3.

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have done so.113 The child, Ömer, was described both as six years old, and as

“not mentally discerning,” which seems unnecessary. According to Ḥanafî

fiqh, if Ömer were six years old, he would be presumed not to be discerning,

and therefore his age alone was enough to determine the answer. Likewise,

no person lacking mental discernment was considered competent to convert

to Islam, so this also would, in itself, be enough to deny the validity of

Ömer’s conversion. It was the fact about Ömer’s mental capacity which did

the legal heavy lifting; any change in his age would not have changed the

result, as long as he was stipulated to be not discerning.

Perhaps, in wording its question this way, the Porte sought to make the

result as emphatic a possible, while maintaining the specification about age.

An Austrian or even Ottoman reader of these three fatwās, if unacquainted

with the detailed provisions of Ḥanafî fiqh manuals, might well have

concluded that, for children above six, a statement of conversion was

automatically valid under Islamic law—a conclusion which would be

incorrect, but would serve the Porte’s interests quite well.

This suggests that the position of the Şeyhülislam was not, as some

historians have argued,114 simply a cleric co-opted by the sultan, stamping

political decisions with the authority of Islamic law. He was, instead, much

like that any government lawyer, bound to interpret the law as best he could,

even if his “client”—the state—might not like his answers to its questions. If 113 For hypotheticals, see Uriel Uriel Heyd, “Some Aspects of the Ottoman Fetva,” Bulletin of the School of Oriental and African Studies 32, no. 1 (1969): 53–54. The Şeyhülislam’s chief clerk, the Fetvā Emini, generally prepared the final questions put to the chief jurist. Ibid., 48.114 See, e.g., R.C. Repp, The Müfti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London: Ithaca Press, 1986).

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the Porte sought his legitimation, it had to present him with policies he could

approve under Ḥanafî fiqh. It seems that here, realizing he could not, the

Porte simply kept silent.

V. The Changing Relationship between Treaties and Islamic Law

Beyond the specific role of the Şeyhülislam, the broader significance of

these fatwās, like this incident as a whole, is that the Ottoman state

characterized international legal questions in Islamic terms. Indeed, this

debate was fundamentally a legal one: the two sides haggled over the

meaning of words in the treaty; over their placement; over who had been

present at the drafting; and over the intent of the drafters; and each

threatened to retaliate in kind if the other did not comply. The Ottomans

again interpreted this in Islamic terms; their documents, both in quoting

Ottoman officials and in translating the Herbert-Rathkeal’s statements,

describe reciprocity as mukabele b’il-misl. This term, literally “reciprocity,”

was commonly used in the late eighteenth-century Ottoman Empire to justify

reforms that would allow Muslims to return, in kind, misfortunes visited on

them by non-Muslims—in other words, to justify financial and military

changes which would make the Porte competitive with its imperial rivals.115

The Ottoman position, at its core, was that any treaty they ratified did

not, and could not, conflict with the sharia. This did not mean that they were

115 See Kahraman Şakul, “Nizam-ı Cedid Düşüncesinde Batılılaşma Ve İslamî Modernleşme,” Dîvân: İlmi Araştırmalar, no. 19 (2005).

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blindly bound by the law, but simply that they had to reconcile their

commitments to it with their treaty commitments. Here, they did so by

articulating arguments, based on the Islamic legal tradition and bolstered, as

far as possible, by Islamic clerics, that their interpretation of the Treaty of

Sistova was the only one possible given the treaty’s language and the terms

of the sharia.

This might sound, at first glance, like a rejection of the entire system of

international treaties. Yet European thinkers were, at the same time,

wrestling with a very similar question. As treaties proliferated in the

eighteenth century, the prominent French legal scholar Emer de Vattel held

that there was both a “positive law of nations,” formed in part by treaties,116

and a “necessary law of nations.” The latter “consist[ed] in the application of

the law of nature to states,”117 and therefore states can neither make any

changes in it by their conventions, dispense with it in their own conduct, nor

reciprocally release each other from the observance of it.”118 In short, “every

treaty, every custom, which contravenes the injunctions or prohibitions of

the necessary law of nations, is unlawful.”119 In its broad form, this principle,

was codified in the 1969 Vienna Convention on the Law of Treaties, which

provides that, “[a] treaty is void if, at the time of its conclusion, it conflicts

with a peremptory norm of general international law.”120 Thus the Ottomans,

116 Emer de Vattel, The Law of Nations, ed. Béla Kapossy and Richard Whatmore (Indianapolis: Liberty Fund, 2008), 78, § 27. 117 Ibid., 70, § 8.118 Ibid., 70, § 9.119 Ibid., 71, § 9.120 VCLT Art. 53.

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in essence, saw Islamic law as including peremptory norms, which could not

be derogated by treaty. But these were still peremptory norms of law,

susceptible to interpretations and exceptions; they were not immutable

cultural principles.

Herbert-Rathkeal, of course, disagreed, and he articulated his position

through another fundamental principle of customary international law. As we

have seen, Herbert-Rathkeal insisted that he was guided only by the positive

law of the treaty, and cared nothing for Islamic law. Though he did not say so

explicitly, Herbert-Rathkeal was effectively reasoning from the most

fundamental principle of international law, pacta sunt servanda, “pacts must

be observed”121—which would be meaningless if a state could use the

provisions of its domestic law to avoid compliance with a treaty commitment.

These principles were also codified in the Vienna Convention which

reiterated the customary principle that “[a] party may not invoke the

provisions of its internal law as justification for its failure to perform a

treaty.”122 To Herbert-Rathkeal, Islamic law was simply the domestic law of

the Ottoman Empire, which he need not consider because it was pre-empted

by the treaty. If the treaty violated Islamic law, that was not his problem—

and in any case, Herbert-Rathkeal pointed out, there had been an Ottoman

121 This principle was itself codified in VCLT, Art. 26.122 Vienna Convention on the Law of Treaties, United Nations Treaty Series 1155 (adopted May 23, 1969), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf, 133 (hereinafter VCLT), Art. 27. See also VCLT, Art. 26 (codifying the principle of pacta sunt servanda).

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http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf


legal scholar at the peace conference absolved the Austrians of any

responsibility for the treaty’s failure to comply with Islamic law.

And yet, despite Herbert-Rathkeal’s repeated claim that he was guided

only by the treaty, his viewpoint was still deeply, if perhaps unconsciously,

informed by legal principles outside the agreement. As we have seen, he

argued that children under the age of 15 could not convert to Islam—an age

which is still shockingly young by modern standards, but less so than the

Ottomans’ preferred age of seven. But precisely because Herbert-Rathkeal’s

preferred age is more familiar, it is easy to overlook that he adduced no legal

authority for it; he grounded it only on “general principles.”123 It simply made

sense to him that younger children were not competent to convert, so he

thought the plain language of the treaty must be read to exclude them.

Herbert-Rathkeal, then, was not quite as much of a legal positivist as he

claimed.

Nevertheless, for the most part Herbert-Rathkeal recognized that the

need to convince the Ottomans through legal reasoning, taking their legal

system head on and attempting to reason through or around it. Geopolitics

demanded nothing less, as the Austrians had only barely won the late war.

As noted above, the Ottomans were not yet the “sick man of Europe,” and

were in many ways equal players in the international balance of power; in

1791 Ainslie could refer to treaty law as “hitherto respected as sacred, and

accounted binding by all civilized Nations of whatever Religion.”124 123 HHStA, TII 97 BWV, Conference Protocol, Nov. 14, 1791, p. 67. The Austrians’ understanding of when adulthood began may have been drawn from Roman law.124 TNA, FO 78/12A #15, Ainslie to London, June 22, 1791.

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But over the next few decades, the Ottomans’ military power declined

significantly, and by the mid-nineteenth century, the Ottomans were clearly

a third-rate power, unable to resist the demands of the European powers

(Britain, France, Austria, and Russia) when they worked together. In this

context, when apostasy again became a diplomatic issue, the debate looked

very different. In 1843-44, after several Ottoman Christians, most notably an

Armenian named Avakim, were executed for converting to Islam and then

apostasizing, British Ambassador Stratford Canning assembled a coalition of

European powers to press the Porte for a guarantee never again to enforce

the death penalty.125 He demanded, in other words, that the Ottomans

abrogate Islamic law (though he argued the Porte had misinterpreted it). He

relied not on treaty law, but on European ideas of morality and on the Great

Powers’ political strength. In the resulting debates, traced in detail by Turgut

Subaşı, the Ottomans claimed that renouncing such a long Islamic tradition

would “antagoniz[e] not only the Ulema but also a majority of the

population[.]”126

The Porte defended itself by arguing that this was “a religious, not a

political, matter, and did not concern the changing of a clause in an

agreement between the two countries,” and that “every nation had a right to

protect its religion.”127 Canning urged the Ottomans to reinterpret Islamic

law; if the ulema would not cooperate, he suggested, the Porte should exert

political pressure: “if the Ottoman ministers were to explain the needs of the 125 See generally Subaşı, “Apostasy Question.”126 Ibid., 1.127 Ibid., 18.

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empire to the Ulema in terms of Europe's friendship, then they would obtain

the ‘necessary’ reply.”128 In the end, the Porte gave in, outmatched by

European power, even as the Ottoman envoy to Paris, Reşid, vainly protested

that “[t]he Porte considered many things in Europe wrong, but it did not

interfere with them.”129 For the next few decades, Selim Deringil argues, “the

Ottomans constantly felt the consulates and embassies were looking over

their shoulder in matters relating to conversion,” and those accused of

apostasy were often allowed to disappear, saving the state from admitting

publicly that it was not enforcing the death penalty.130

Where the 1791 debates had sounded in recognizable principles of

international law, with the states at least nominally equal, those in 1843-

1844 did not. As the power of the European states grew, they exerted this

power to force the Ottomans into the “unequal treaties” mentioned above,

and their attempts to change the law of apostasy in the 1840s drew on that

power, rather than on treaty law. This was a global phenomenon; even as

Canning argued about apostasy in Istanbul, other British diplomats were

coordinating the Opium Wars, which would inaugurate European domination

of Qing China through a regime of “unequal treaties.”131

Around the world, formally or informally imperialized peoples took

refuge by asserting that certain matters were inherently off limits, part of a

128 Ibid., 15.129 Ibid., 21.130 Selim Deringil, “‘There Is No Compulsion in Religion’: On Conversion and Apostasy in the Late Ottoman Empire: 1839-1856,” Comparative Studies in Society and History 42, no. 3 (2000): 559, 564.131 See Kasaba, “Treaties and Friendships,” 227.

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cultural and religious “inner domain.”132 In the Ottoman Empire, this meant

turning to a reified, politicized interpretation of Islam, to assert the empire’s

independence and particularity in a world increasingly dominated by

European, Christian empires.133 In legal terms, family and personal status law

took this role throughout the Muslim world—remaining formally Islamic in

content even as it was procedurally codified.134 As in the changes between

the 1790s and 1840s in the Ottoman Empire, debates that had been about

the articulation of different legal obligations came to be about something

much deeper, and more intractable.

VI. Conclusion

The colonial legacy colors debates today. The 1929 codification of

Egyptian family law, for example, provided for maternal guardianship in the

case of divorce, until a child reached the age of ten (for boys) or eleven (for

girls), leaving the court an option to extend this to fifteen. A 2005 revision,

moved the age of maternal guardianship to fifteen, and gave children of that

age the right to choose either parent—eerily echoing the Austrians’ position

on conversion.135 At the same time, the issue of whether Islamic law can be 132 The term is from Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton, N.J.: Princeton University, 1993), 5-6.133 See Selim Deringil, The Well-Protected Domains: Ideology and the Legitimation of Power in the Ottoman Empire, 1876-1909, 2nd ed. (London: I. B. Tauris, 2011); Zeynep Çelik, Displaying the Orient: Architecture of Islam at Nineteenth-Century World’s Fairs (Berkeley: University of California Press, 1992).134 See Chibli Mallat, Introduction to Middle Eastern Law (New York: Oxford University, 2007), Chapter 7.135 Emory Law School, Islamic Family Law Project, “Egypt, Arab Republic of,” http://www.law.emory.edu/ifl/legal/egypt.htm, accessed April 30, 2014. I thank Ahmed Fekry Ibrahim for bringing the 2005 update to my attention.

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http://www.law.emory.edu/ifl/legal/egypt.htm


derogated by treaty, which the Ottomans and Austrians contested in 1791, is

also central to modern debates: Afghanistan, Iran, and Saudi Arabia entered

sweeping reservations to the Convention on the Rights of the Child, stating

“that they would not be bound by provisions contravening Islamic law.”136

This assertion, designed to prevent children’s conversion away from Islam, in

a sense makes explicit what the Ottomans argued, in 1791, was implicit in

every treaty the Porte signed: that a treaty could not derogate Islamic law.

Many human rights advocates, by contrast, echo another argument Herbert-

Rathkeal made in 1791. They contend that some human rights are

peremptory norms, and thus are binding regardless of state consent.137 On

the question of apostasy, in particular, the U.N. Human Rights Committee

has held that states may not reserve their obligations to respect freedom of

religion under the CCPR, because such reservations would conflict with

peremptory norms. Thus, “a State may not reserve the right . . . to deny

freedom of thought, conscience, and religion[.]”138 Such long-term

continuities and changes in various Western and Muslim ideas of the

relationship between international law and Islamic law are worthy of further

consideration.

136 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, 5th ed. (Boulder, CO: Westview, 2013), 171. Seven other Muslim states entered similar reservations, as did Poland and the Vatican. See Ibid.; Kamran Hashemi, Religious Legal Traditions, International Human Rights Law and Muslim States (Boston: Martinus Nijhoff, 2008), 242–44. 137 See Ben Clarke, “Law, Religion and Violence: A Human Rights-Based Response to Punishment (By State and Non-State Actors) of Apostasy,” Adelaide Law Review 30 (2009): 131–32.138 Human Rights Committee, “General Comment No. 24: General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocol Thereto, or in Relation to Declarations under Article 41 of the Covenant,” UN Doc. CCPR/C/21/Rev.1/Add.6 (1994); see also Ibid.

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Turning back to the 1790s, however, the story told here reveals at the

very least that the relationship between Islamic law and ideas of law

between empires and nations is far from static or timeless. The Ottomans,

far from reluctant late-comers to a fully-developed system of Western

international law, appear here as active players in the eighteenth-century

diplomatic and legal system. Their ideas about the structure of that system,

with a division between positive law emanating from treaties and a higher

set of inalienable norms, seem quite similar to those of their Catholic

interlocutors in the Habsburg empire. Even when particular substantive

norms came into conflict—as with the age of children’s conversion or the

validity of apostasy—Ottoman and Habsburg diplomats took both treaties

and sharia seriously, as law. This was a moment when the Ottomans were

still on nearly even political and military terms with the Habsburgs, and both

sides attempted to reason their way through these issues—rather than

assuming compromise was impossible, and resorting to raw political power.

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