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The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021).

English legal historian Frederic William Maitland declared in the late 19th century, “[i]f we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think [of] any better answer . . . than . . . the development from century to century of the trust idea.”1 Maitland, indeed, had good reason to applaud the innovation of trust law. But his claim of English exceptionalism may have been a bit immodest.

As beautifully recounted in an unattributed student case note,2 English legal tradition is not alone in recognizing beneficial ownership, the concept that underlies the enduring ingenuity of trust law. The Hagia Sophia Case: Turkey’s Highest Administrative Court Annuls Ataturk’s 1934 Decision Converting the Hagia Sophia into Museum, reveals that the validity of a fifteenth-century Islamic charitable trust emerged in 2020 as a pivotal question on appeal to Turkey’s highest administrative court. In that case, the petitioner sought to invalidate the conversion of one of Istanbul’s famous landmarks, the Hagia Sophia, from an active mosque into a public museum.

Built by the Romans in 537, Turkey’s renowned marvel of Byzantine architecture existed for nearly a millennium as the flagship cathedral of eastern Christianity. But in the aftermath of Emperor Constantine XI’s military defeat in 1453 by the Ottoman Turks, Sultan Mehmed II converted the Hagia Sophia into a mosque and endowed the property in perpetuity as an Islamic charitable trust. Later adorned by four minarets, the Hagia Sophia was administered according to the terms of Mehmed’s trust for nearly five hundred years until 1934, when Kemal Atatürk, the first president of the newly secular Republic of Turkey, converted the ancient landmark into a public museum. The controversial move surprised both Turks and foreigners alike,3 but it did not immediately transform the landmark into the blockbuster tourist attraction that it later became. By one account, published by the Guardian in 1935, “the most famous Turkish mosque, for all time the greatest triumph of large-scale Byzantine building, [. . .] has tranquilly slipped into the state of a rather empty museum.”4 Attendance improved over time and, by 2019, the Hagia Sophia had become Turkey’s most visited museum.5

The Harvard Law Review case note reveals that, while many commentators attribute the recent decision restoring the Hagia Sophia’s sacred status to an executive fiat by President Recep Erdogan, a Turkish court was actually the mandate’s official source. While it is probably impossible to disentangle this litigation from the influence of domestic politics, analysis of the actual case argued before the Turkish courts offers a fascinating glimpse into the mechanics of medieval Islamic trust law, which, to my surprise, closely resembles doctrines of modern American trust law in certain respects.

In 2016, the Turkish Association for the Protection of Historical Monuments and the Environment filed a petition to reopen the Hagia Sophia as a mosque for Muslim worship. The petition slowly wound its way through the trial and appellate courts until the matter was finally appealed to the Council of State. There, the high court concluded that the 1926 Turkish Civil Code, which governed at the time of the 1934 conversion, preserved an Ottoman doctrine of Islamic trust law which prohibited modification of a charitable trust unless the purpose becomes useless or violates public policy. The Council of State held that, because neither exception applied, Turkish courts have an obligation to carry out the settlor’s intent, a duty that compelled the annulment of Atatürk’s 1934 conversion because that act violated the terms of Mehmed’s charitable trust.

The case note agrees that the Council of State reached the legally correct decision, but the student author offers a fascinating three-part critique of the Council’s application of Ottoman law.

First, the note argues that the court could have more fully addressed the legitimacy of Mehmed’s power to terminate existing rights of Byzantine citizens to use the cathedral for Christian worship. Under the branch of Islamic law followed by the Ottomans, a ruler who prevailed in conquest was required to respect existing property rights, especially for religious sites, but only if the defeated party surrendered. In a conquest by force, like Mehmed’s invasion of Constantinople, the prevailing conqueror could void existing property rights entirely. Conquest by force, therefore, gave Mehmed authority as Sultan to void the rights of Byzantine worshippers to maintain the Hagia Sophia as a Christian cathedral.

Second, the note contends that the court should have analyzed the way in which Mehmed exercised his authority over the Hagia Sophia. Under Islamic law, conquest by force entitled the ruling party to void existing property rights (as noted), but not for the ruler to seize proprietary ownership for himself. Up to one fifth of the conquered land could be endowed for the benefit of the general public while the rest had to be allocated among the soldiers. Thus, Mehmed never owned the Hagia Sophia outright in his individual capacity, as some commentators and historians have claimed, but Mehmed did have a legal right to endow the Hagia Sophia in trust as a mosque for the benefit of the worshipping public. The court could have strengthened its argument by mentioning this point.

Third, the note confronts the court’s failure to explain why Atatürk, as sovereign leader of the prevailing conqueror, lacked authority to modify the terms of Mehmed’s trust. Under one theory of Islamic law, rulers were permitted to modify charitable trusts if the corpus contained income-producing property and the modification implicated a governmental interest. Mosques, however, are not income-producing, so, under that theory, Mehmed’s restriction would be binding against successive rulers. According to another theory, a ruler could add or remove provisions but could not completely repurpose a charitable trust. At least one precedent seems to support the claim that altering the holy status of a mosque would rise to the level of impermissible repurposing.

For me, a reader more familiar with the modern rules of American trust law than sacred cannons from centuries past, what resonated most profoundly about this case was the unmistakable similarity between medieval Ottoman trust law and the modern rules of American trust law that T&E professors teach at law schools today throughout the United States. Indeed, provisions of the Uniform Trust Code, first promulgated in 2000 and since enacted in 35 states, are virtually identical to the Ottoman trust law doctrines that governed in the time of Sultan Mehmed: a valid trust purpose is one that is lawful and not contrary to public policy (UTC §404), and a charitable trust cannot be completely repurposed contrary to the settlor’s intent unless “a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful” (UTC §413), to cite two examples.

If Frederic William Maitland could revive himself from the dead, he would surely read this case note about the Hagia Sophia with as much interest as I did. Maitland would be gratified by the flourishing field of modern trust law, which has proven to be one of the most useful and enduring concepts of property law, but, perhaps, he might concede that the idea of beneficial ownership should not be attributed exclusively to English jurisprudence.

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  1. F. Maitland, Selected Essays 129 (1936).
  2. According to internal policy, the Harvard Law Review does not attribute author names to unsigned comments.
  3. See Yildiray Ogur, Hagia Sophia: Ataturk and the rich Americans who changed icon’s fate, Middle East Eye (July 23, 2020).
  4. Saint Sophia: conversion into a museum, The Guardian (June 12, 1935).
  5. See The Governorship of Istanbul, The Most Visited Museums of Turkey: Hagia Sophia Museum (Dec. 3, 2020).
Cite as: Reid Weisbord, New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia, JOTWELL (May 16, 2022) (reviewing The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021)),