The world of law is highly diverse and contains many legal inhabitants (states, organizations, nations, languages, cultures etc.) which do not share a constant vision of time or of the past. When new states are born and old ones are shattered or disappear, the idea concerning legal continuity spanning over time is put under critical test. International (public) law contains norms for these types of situations, but they do not eradicate the fundamental tension which the old and new legal order brings about inside the state itself. Inner-tension based problems tend to be severe if indigenous legal traditions that were accepted by the old order are not even recognized by the new. The more ancient and institutionalized the legal traditions are, the more burning the tension appears to be. This is especially the case if a legal tradition is considered as an “alien” or even an “inside-enemy” from the point of view of the new state and its prevalent legal culture.
The schismatic problem arises from the fact that all legal traditions are inherently normative: they embody the demand for normative power for their own legal inheritance. We may call this dimension of legal traditions ‘the presence of the past’ (term from Pierre Legrand) which expresses legal cultural experience of a historically conditioned understanding exceeding that of the present state and its contemporary legal system.
This paper examines an ancient and highly refined written legal tradition situated in modern Turkey. The institution in question is the Ecumenical Patriarchate of Constantinople (in Greek Οἰκουμενικό Πατριαρχεῖο Κωνσταντινουπόλεως) which is situated in today’s Istanbul. It is an important religious institution for all Greek Orthodox churches throughout the world, even though in Turkey it is confined to a small minority. The case of patriarchate is exceedingly seminal for anyone who wishes to explore what are the detailed and complex difficulties between old and new law in a situation in which all the odds seem to be against the very survival of a long-standing legal tradition. To put it briefly, historically derived and selected nationalistic ideas and values about the law and prevalent Turkish legal regime do not seem to allow a healthy base for the survival of the patriarchate.
Yet the patriarchate constitutes an intriguing laboratory for examining an ancient living tradition containing normative information. In this study, the patriarchate is conceived as a specific legal tradition which is inherently bearing the ‘presence of the past’ i.e. the demand to recognize its soft normative transnational power and long-standing body of normative information. The impressive past of this institution dates back to the times of Antiquity, continues through the Middle-Ages spreading from the East to Rome (330-1452) to the Ottoman Empire or the Osmanlı İmparatorluğu (1453-1922) and to modern day Turkey (1923-). The deep roots of the patriarchate also provide us with an historical irony: modern Turkish law has been drawing heavily from the European Civil Law tradition which is based on Roman law (or rather ius commune), with this very same Roman foundation providing an undeniably recognized position for the patriarchate which modern Turkish law does not.
The research theme is approached and analyzed by regarding the patriarchate as a transnational legal tradition (in the sense developed by H. Patrick Glenn) which has its foundations based upon ancient Roman law (e.g. Νεαρές, in Latin Novellae), Orthodox Canon law, law of the Ottoman Empire, international law of treaties, international human rights and even the old and up-to-date Turkish law. In accord, the study of the patriarchate requires also applying very ancient legal texts to modern day institutions.
Even though the theme itself and some of the material used in the study are of a theological or religious nature, the approach entertained here is legal i.e. it makes use of legal arguments. In a similar vein, the author stresses the importance of human rights and specifically the significance of the European Convention on Human Rights and Fundamental Freedoms. It is apparent that many of the important recent cases decided by the European Court of Human Rights (e.g. Fener Rum Erkek Lísesí Vakfı c. Turquie 2007, Apostolidi et autres c. Turquie 2007 ECtHR ) are crucial to the argument developed in this study. Relevant human rights case law (i.e. quasi-legislative side of human rights adjudication) provides a tool that is deployed in critical analysis concerning some of the overtly nationalistic tendencies in modern Turkish law. In addition, the United Nations’ Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) are seen to hold a significant position in reinforcing the authority of human rights.
In chapter 2, the long history of the patriarchate and its ancient legal basis as well as its contemporary legal-cultural situation is presented and analyzed. In chapter 3, a picture of the international law based position of the institute is presented as well as its position from the point of view of Turkish modern law (of international and domestic nature) and legal culture. In addition, some of the most relevant legal problems between the patriarchate and Turkish law are encountered: the contested ecumenical nature in the light of the recent Turkish Court of Cassation (in Turkish Yargıtay) case decided in summer 2007, hindered schooling of priests (the question of Halki-seminar), lack of protection for property, and troubled nomination-procedure of patriarch and other clerical personnel (the demand of Turkish citizenship). Even so, at the very heart of the problem lies the lacking formal legal recognition of the patriarchate.
In chapter 4, the author criticizes Turkish interpretations of the Treaty of Lausanne (1923) and international human rights from the point of view of protection of national religious minorities. The author provides argument for more a human rights friendly approach, stressing the legitimacy of indigenous minority rights and their accompanying long-standing cultural institutions. In particular, the unilateral mala fides interpretation-technique applied, highly questionable in modern day international law, is put under analytical critique. However, the main critique is targeted against the seemingly overt nationalistic manner that Turkey deploys when it makes interpretations about the legal position of the patriarchate. It seems Turkish judges are bringing their nationalistic legal-cultural assumptions, preferences and more importantly their prejudices into courtrooms when they deal with the patriarchate. As an outcome, the de facto legal basis of this institution is very thin indeed. The consequences are profound since the very survival of the patriarchate is at stake.
This study advocates for a change in Turkey’s human rights culture. By and large the problems are not of a Law-in-Books nature but, instead, Law-in-Action nature. One must be careful, though, not to generalize too broadly. In other words, the Turkish legal system per se is not problematic but, instead, the nationalistic interpretations may easily be targeted to severe human rights based criticism. Contestable nationalistic presuppositions (e.g. so-called syndrome of Sèvres) lie at the foundation, buried neatly under the surface, of seemingly problem-free formal law. In the final chapter (5) the author questions the lacking recognition of the normative ‘presence of the past’ of the patriarchate.
Finally, the author concludes, that as an important state holding potentially a unique position between the Western and Eastern legal cultures, Turkey certainly deserves a more legitimate human rights culture than is present today. As legal-cultural attitudes concerning human rights of minorities differ from today’s ECHR ’s value-base, it seems rather uncontested that the future of the patriarchate is connected with the development of the Turkish human rights culture. Ultimately, minority human rights should work against all forms of violence, imperialism and suppression, which on the other hand, normally go hand in hand with mono-cultural nationalism (i.e. Kemalistic milliyetçilik).
Professor Jaakko Husa