Slavery in Islamic Law

Slavery was a widespread institution in antiquity and a major topic of Islamic legal jurisprudence, which addressed matters of buying and selling slaves, rights of owners including sexual relations, marriage, and many other facets. The two legitimate sources of slaves agreed upon by the Ulama were captives taken in war, and children born to slaves (unless the slave-owner was the father), though in practice various other means of slave acquisition occurred. The Quran assumes the existence of slavery and grants sexual access to slave owners, including for the prophet himself to enjoy from among the war-captives, as well as control over their marital status. It commands the capture of slaves during battle, though also their ransom or release after the war, and encourages owners to grant contracts by which virtuous slaves may purchase their freedom, a practice also found in other late antique cultures. Largely as a result of pressure from colonial powers as well as economic and demographic changes, slavery was eventually made illegal throughout the Muslim world in the 19th and 20th centuries, and is now considered forbidden in the modern context by most scholars, though a minority argue that slavery remains Islamically legitimate.^[1]

Sources of slaves

In the Quran and hadiths

While a number of times the Quran addresses its listeners who are already in possession of slaves, it has little to say regarding the acquisition of slaves. Quran 16:71 states that it is by Allah's favour that slave owners have greater provision than their slaves. Quran 8:67 and Quran 33:50 grants the prophet the right to take captives and makes lawful his sexual intercourse with them, respectively. Quran 47:4 tells the believers to take captives after routing the disbelievers in battle, but then adds that they be released or ransomed after the war lays down its burdens.

In terms of biographical material, a source considered relatively reliable by many academic scholars are the letters of 'Urwa b. al-Zubayr (d. 713 CE) to the late Umayyad Court. One of his letters concerns the conquest of Mecca. After the conquest 'Urwa briefly describes the battle of Hunayn in which he says Muhammad took the women and children as booty before heading to a seige elsewhere, freeing them two weeks later after finding upon his return that they had converted to Islam.^[2]

The Sira literature and hadith collections mention female concubines acquired by Muhammad (see Rape in Islamic Law), and he reportedly accepted an Egyptian Coptic woman called Mariyah as a gift (see Maria the Copt (Mariyah Al-Qibtiyyah)).

War captives and children born into slavery as the legitimate sources

It is commonly claimed that in Islam only war captives may be enslaved. However, this is not entirely correct. In his detailed academic book Islam and the Abolition of Slavery Wiliam Gervase Clarence-Smith writes of the Sunni compromise on slavery determined by 800 CE, "One mode of enslavement was the capture of obdurate infidels in holy war. The other was birth to a slave mother, unless she was a concubine whose master acknowledged paternity."^[3]

As noted above, the Quran itself only mentions acquisition of slaves as captives resulting from battle. These were an important part of the war booty resulting from the defeat of disbelievers.^[4][5]

Quran 47:4 commands the taking of captives from disbelievers defeated in battle, though also their eventual ransom or release. Nevertheless, Clarence-Smith notes, "Although ransom is specifically commended in 47:4, the founder of the Hanafi legal school forbade the practice, and some later jurists even prohibited exchanges of captives." This was for fear that doing so would help the enemy.^[6] Regarding women and children, the advisor to the Abbasid Caliph Harun b. Rashid (r. 786-809) "prudently declared that it was up to the commander of the faithful to determine the fate of non-combatants. In practice, booty regularly came to include dependent women and children".^[7] In his book The Art of Jihad, Malik Mufti observes regarding the classical treatment of prisoners of war "some of the earlier jurists allowing Muslim commanders a choice only between killing and enslaving them" while others gave more discretion to ransom or release prisoners.^[8]

To arrive at the 2nd agreed upon source of slaves in Islam - the children of slaves, Clarence-Smith explains that "The next crucial step was to expand the category of the enslavable to the whole population of a conquered territory. This furnished female captives, rare or non-existent on the field of battle, thus opening the way to hereditary slavery and concubinage. The example of the prophet and his companions was vital." Muhammad was reported to have enslaved captured Jewish women and children.^[9] As also noted above, the Quran refers to sexual access to female slaves, including those captives who were the prophet's share of war booty. Ulama agreed that believing men could take an unlimited number of concubines.^[10]

Joseph Schacht, who was Professor of Arabic and Islam at Columbia University, wrote in his classic textbook, An Introduction to Islamic Law, "Slavery can originate only through birth or through captivity, i.e. if a non-Muslim who is protected neither by treaty nor by a safe-conduct falls into the hands of the Muslims." He adds, "The children of a female slave follow the status of their mother, except that the child of the concubine, whom the owner has recognized as his own, is free with all the rights of children from marriage with a free woman; this rule has had the most profound effect on the development of Islamic Society."^[11] His last comment alludes to occasions when the children Muslim rulers had with their concubines subsequently obtained power.

Similarly, Professor Kecia Ali writes in her book Marriage and slavery in Early Islam, on the case of a married female slave, "Her master had fewer rights over her than he would have had over an unmarried female slave; in particular, he lost the right of sexual access, though he would own any children born as a result of her marriage. If she were his own concubine, her children would be free and legitimate; they would not be his property."^[12] A concubine who bore her owner a child would herself attain the status known as Umm Walad (mother of the child), becoming automatically free upon her owner's death and forbidden to be sold, though he could grant her freedom or marry her off to another man without her consent.^[13] An owner would also have to free his slave if he wished to marry her himself.^[14]

Other sources of slaves in practice

Tributes and slave trading
In practice, though without reference to the Quran, hadiths, nor founders of the legal schools, many slaves were acquired as tribute from non-Muslim states (a precedent was an annual tribute from Nubia, which probably began in the 8th century CE though was claimed to date to the mid 7th), and by purchase. Clarence-Smith writes, "Purchase, alledgedly first permitted by the Umayyad Caliph Mu'awiya (r. 661-680), probably yielded the largest number of slaves. He also notes that "Ibn Taymiyya permitted Muslims to purchase debt slaves from infidels who had no covenant with Muslims." and notes various places where this type of slave-purchase was practiced, as well as purchasing as slaves those who had been condemned for various types of misconduct.^[15]

A number of hadiths mention Muhammad himself purchasing and selling his own slaves or occasionally on behalf of others, though not as a professional slave trader (see Qur'an, Hadith and Scholars:Slavery). The Ulama failed to condemn slave-trading, though the occupation was often held to be reprehensible according to Clarence-Smith.^[16]

The buying and selling of slaves within the Muslim polity (as opposed to buying from infidels) was on the other hand extensively covered in all its facets under Islamic property laws, though this did not itself increase the stock of slaves available to Muslims.

Slave raiding and kidnapping
Clarence-Smith writes, "From the ninth century, jurists developed the fateful theory that the inhabitants of Dar al Harb, the abode of war, 'were all potential slaves'. Also known as Dar al-Kufr, the land of unbelief, this area lay beyond Dar al-Islam, the abode of submission to God. However, Shafi'i jurists conceived of an intermediary sphere, known as Dar al-'Ahd or Dar al-Sulh, the abode of covenant. Unbelievers who dwelled there, even animists, were protected from arbitrary enslavement as long as they concluded formal pacts with the Muslims." Jurists further developed arguments that slavery was a humiliating punishment for disbelief. This led South Asian scholars to the view that a state of jihad, which would require first inviting disbelievers to accept Islam, was unnecessary for seizing infidels who were to be treated as property to be acquired. For raiders this put inhabitants who had fallen into their hands at their absolute disposal and lawfully reduced to slavery.^[17]

Slave raiding expeditions under the pretext of holy war were common by African rulers at one time, and Barbary naval raiders considered themselves to be conducting jihad with the blessing of the Magrebi ulama (though there were many scholars who protested that they lacked proper authority). Piracy and raiding in the Maghreb, Southeast Asia, South India and the Caucasus became common, sometimes a greater source of slaves than holy war. Generally this was without any religious sanction or leadership, with at most a thin veneer of religious oversight.^[18]

Exemption for People of the Book subject to Muslim rule

Clarence-Smith writes regarding the taking of slaves from peaceful populations (as opposed to war booty), "There existed an early and clear prohibition on enslaving 'people of the book', or scripturaries. These were initially Jewish and Christian monotheists living peacefully under Muslim rule, who paid special taxes. Zoroastrians were later included without too much protest, although Manichaeans were excluded. Some Muslims wanted Hindus and Buddhists to be classified as idolaters, enslavable at will, but this was eventually rejected."^[19]

In practice, though without convincing Islamic justification, regular taxes from peaceful subjects were sometimes paid in the form of slaves to the Muslims, most notably by Christians supplying their sons to join the Ottoman Janissaries, an elite military corp whose origins lay in such child-slave levies.^[20]

Non-Muslim residents of an Islamic state who failed to pay jizya or broke their contract with the state could also be enslaved according to some scholars.^[21][22][23]

Emancipation

The Quran presents the freeing of slaves as a virtuous act (Quran 2:177, Quran 90:12-17) as well as an expiation for certain sins (Quran 4:92, Quran 5:89). Hadiths add that slaves should be freed if they are slapped in the face or beaten without good cause.

As in earlier and contemporary near eastern cultures^[24], a slave could agree a contract to purchase his or her freedom. In Islamic law this written contract is called by its Quranic term, mukatab, derived from the Arabic verb "to write", and owners are encouraged to contribute with their wealth:

As mentioned above, Muhammad is reported to have freed captives upon their adoption of the faith (although on the other hand Quran 2:221 assumes the existence of believing slaves, who Muslims may marry; in Islamic law, "The male slave may marry up to two female slaves; the female slave may also marry a free man who is not her owner, and the male slave a free woman who is not his owner."^[25]). Islamic law does not allow enslavement of free-born Muslims.^[26]

If a person converted to Islam after being enslaved, their emancipation would be considered a pious act but was not obligatory.^[27] Many scholars were uneasy about the practice of freeing captives who professed to have converted to Islam, for fear that such conversions were a pretense by the slaves to gain their freedom. For this reason, Clarence-Smith writes, "The Ulama only accepted automatic liberation through conversion when slaves ran away from infidel owners to join the Islamic host", citing a precedent in which an Ethiopian slave who escaped the seige of Ta'if was freed by Muhammad.^[28]

Other rights and protections

The Quran forbids owners from forcing their slave women into prostitution in Quran 24:33, as traditionally interpreted. Possibly this refers to forced fornication in general according to some Islamic modernists, though sexual relations with their owners would not count as fornication since this is expressly permitted in other verses. Quran 4:36 lists those whom your right hands possess among the groups to whom kindness should be shown.

As mentioned above, a concubine who gives birth to her owner's child attains the status of Umm Walad (mother of the child). She can no longer be sold, is set free upon her owner's death, and their child is free from birth.

Quran 4:25 is a verse which recommends that a poor believer who cannot afford to marry a free woman should marry from among the believing slave women (who are owned by other believers, since "whom your right hands possess" switches to the plural). The verse tells them to first obtain permission from "her people" to marry her. If these women subsequently commit fornication, it says they should receive only half the punishment of free women.

A number of rights are given to slaves by Muhammad in one hadith. Sahih Bukhari 1:2:29 reports Muhammad stating that "Your slaves are your brothers and Allah has put them under your command. So whoever has a brother under his command should feed him of what he eats and dress him of what he wears. Do not ask them (slaves) to do things beyond their capacity (power) and if you do so, then help them."

Emancipation and other slave rights in wider late antiquity

While certainly an advancement for its time, the extent to which Islam brought exceptional treatment of slaves by ancient standards is often exaggerated. Before Islam, Zoroastrian law had protections for slaves against violence, and it was considered a virtue to free a slave.^[29] Martin Klein writes:

It was also common in ancient Rome to free slaves, so much so that Augustus had a law enacted to prevent manumission of slaves younger than 30 years old. Both in the time of Augustus and in the early Islamic era, slaves were abundant so there was plenty of scope to free slaves without economic consequence.

While rural slaves under the Romans were treated abysmally, educated slaves often served as business agents of their masters, mechanics and artisans in every kind of industry. Such slaves were able to consider part of the gains of this work as their own, called their peculium, property owned by the master but which from a practical point of view belonged to the slave and could even be used to buy their own freedom. The Constitution of Antoninus prohibited cruelty towards slaves and introduced punishment for owners who unjustly killed their slaves. Slaves were able to file complaints against their owners for cruelty who may then be forced to sell the slave. The Constitution of Claudius forbade the separation of slave husbands and wives, parents and children, or brothers and sisters when there was a sale or division of slave property.^[31]

Lack of sexual consent and slave marriages

In the Quran

The Quran gives permission for believers to have intercourse with both their wives and those whom "their right hands possess", explicitly distinguishing the two in the verses shown below, which is used by traditionalists to categorically disprove a common Islamic modernist claim that believers could not have intercourse with captive women except by marrying them. Moreover, one verse explicitly grants such rights to the prophet himself for his own share of the captives from the war booty:

The Quran commands that marriages be arranged for righteous slaves:

One verse allows believers to marry captives who already have husbands. Traditionally, this was revealed after a battle following which Muhammad's men were uncertain whether or not they could have sexual relations with the female captives who had mushrik husbands (see Sahih Muslim 8:3432).

The next verse grants poor believers permission to marry from among the believing slave women.

In Islamic law

In Islam, the consent of a slave girl for sex, for withdrawal before ejaculation (azl) or to marry her off to someone else was not considered necessary, historically, according to Professor Kecia Ali.^[32] Similarly, Joseph Schacht wrote in his textbook on Islamic law, "The marriage of the slave requires the permission of the owner; he can also give the slave in marriage against his or her will. [...] The unmarried female slave is at the disposal of her male owner as a concubine, but no similar provision applies between a male slave and his female owner."^[33] Early legal hadiths and jurist opinions include punishments for the rape of slave women, but these are explicitly referring to situations where someone other than the slave woman's owner forces her into intercourse, which is treated as a property crime for which compensation is due to the owner for the depreciation in her value (see Rape in Islamic Law).

In her book Marriage and Slavery in Early Islam, Kecia Ali explains that there was consensus that slave women could be compelled by their owners into marrying whosoever their owner wished (except that he could not himself marry her while she was a slave, though she could become an umm walad, as discussed above). As for male slaves, the Maliki school held that owners could marry off their own male slaves without their consent, as did most Hanafis. The Shafi'i school in contrast held that this could not be done without the male slave's consent.^[34] A master could annul the marriage of his female slave and contract her divorce without her permission, whereas from the 9th century CE jurists decided that a male slave's marriage could not be dissolved by his owner without his permission (though all jurists agreed that his owner's permission was required for him to marry in the first place).^[35]

Although Muhammad's men seem to have had intercourse with captive mushrik women whom they had captured during the expedition to Awtas/Autas (Sahih Muslim 8:3432), most jurists later ruled that this was later forbidden by Quran 2:221 (the verse only forbids marriage to mushrik women, but scholars inferred that this also applied to intercourse with slaves). Intercourse with Muslim, Christian, or Jewish slaves was not affected by this restriction.^[37]

Early scholars of fiqh devised a workaround for this restriction, including the allowance of raping younger captives who were mushrik:

Muhammad had intercourse with his slave girl Maria

See also: Safiyah and Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya

Muhammad had a child with a slave girl of his, known as Maria the Copt, who was a gift to him from the Governor of Alexandria. In a hadith from Sahih Muslim, a phrase translated as "slave girl" is, in the orignal Arabic, umm walad (أُمِّ وَلَدِ) (literally: "mother of the child") and is the title given to a slave concubine who bore her master a child.

The following hadith is graded Sahih by Dar-us-Salam:

Tafsir al-Jalalayn says of the verse referred to in this hadith:

An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths (in yet another version Sahih Muslim 9:3497, Muhammad ate honey at Hafsa's house instead of Zainab's).

"Honey" was also a sexual euphemism and an explicit example of its usage in this sense is found in a hadith in Abu Dawud:

Sean Anthony and Catherine Bronson have noted that "Modern scholars have been inclined to regard the more scandalous story involving the slave girl as the earlier one given that it appears in the earliest sources, and despite the fact that the honey story has a superior pedigree in the eyes of the ḥadīth scholars. These modern scholars reason that, if the story of Ḥafṣah’s jealousy after seeing the Prophet with his slave-girl predates the honey story, then exegetes likely contrived the honey narrative at a later date in order to provide an alternative to the unflattering portrayal of the Prophet and his wives in the former story. Furthermore, while the honey story may provide a somewhat plausible explanation for Q 66:1–2, its explanatory force greatly diminishes when applied to the remainder of the pericope. The gravity of Q 66:5–6, which threatens divorce as a penalty for plotting against the Prophet, makes a poor match for the trifles of the honey story."^[38]

Ali rapes an underage ward of the state

Another relevant hadith is one which concerns an incident which led to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both Sunni and Shia sources agree that Muhammad received complaints about 'Ali taking a slave-girl from the Khums (the fifth of all booty allotted for the state^[39]) to which those complaining felt that no private party was entitled.

The Arabic of the Sunni hadith below mentions 'Ali taking a Ghusl bath (which is mandatory after sexual contact or ejaculation), implying sexual activity. Later, at a place called Ghadir Khumm, Muhammad tried to pacify those who were upset with 'Ali by declaring Ali to be his Mawla. Mawla is an honorific meaning something between "follower", "ally", and "leader", which the Shia interpret to mean "successor of Muhammad". Thus, in some sense, Ali's having raped an underage captive becomes the immediate cause of what the Shi'a insist was the the announcement of Ali's succession. The emergent Sunni polemic here casts some doubt on the historical reliability of the hadith, yet, as a hadith included in Sahih Bukhari, it more than meets the Sunni requirements for authenticity.

Ibn Hajar al-Asqalani (d. 1449), one of the most famous Hadith scholars of all time, points out in his seminal Fath al-Bari (the still-standard commentary on Sahih Bukhari) what several scholars before him noted: that in accounts of this event, Ali does not observe the required iddah (waiting) period to determine whether or not the girl was pregnant. Al-Asqalani quotes al-Khattabi who summarizes the possibilities: "she was either a virgin [strongly implying a young age in a culture where women married young], had not yet reached maturity, or Ali's ijtihad (that is, independent/innovative reasoning in Islamic jurisprudence) led him to not adhere to the waiting period in her case."^[40]

See Also

• Qur'an, Hadith and Scholars:Slavery
• Rape in Islamic Law
• Maria the Copt (Mariyah Al-Qibtiyyah)
• Safiyah

References