But this indolence, when applied to resident aliens, had consequences
still more serious, because external as well as internal. Following the
same method of leaving the unbeliever to settle his affairs for himself,
the European merchant, living and trading in the East, was put first by
usage and finally by treaty under the jurisdiction and control of his
own consul. Thus there grew up the extra-territorial law of the
capitulations and conventions, by which the sanctity of the person and
household of an ambassador is extended to every European. And this in
turn, has reacted on the status of the non-Moslem subject races, and has
come to be the indirect but chief support on which they lean. Through
it, an element has developed which makes it practically impossible for a
Moslem state to introduce legal changes even remotely affecting its
non-Moslem population, alien or subject, without the consent of the
European embassies. Any change may be upset by their refusal to accept
it as incompatible with the capitulations and conventions. The embassies
have thus, as interpreters of a part, at least, of the constitution,
come to hold a position remarkably, if absurdly, like that of the
Supreme Court of the United States (see Young, _Corps de droit Ottoman,
passim_).
There may be said, then, in short, to be three elements in the legal
life of a Moslem state: the sacred and fixed canon law of Islam; the
civil law, based on the usages of the different peoples, Moslem and
non-Moslem, and on statutes going back to the will of rulers; the
international law of the capitulations, with a contractual sanction of
its own. The hope for the future in Islam, there can be little doubt,
lies in the principle of the agreement of the Moslem people, with its
conception of catholic unity, and its ability, through that unity, to
make and abrogate laws. As the Moslem peoples advance, their law can,
thus, advance with them, and the grasp of the dead hand of the canon law
be gradually and legally released.
Public-domain text, read in full here on John Shaqi.
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