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Slavery in Islamic Law: Difference between revisions
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Slavery was a major topic of Islamic legal jurisprudence, | 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.<ref>"Although the vast majority of contemporary Muslims agree that there is no place for slavery in the modern world, and some nineteenth and twentieth-century reformers such as Sir Sayyid Ahmad Khan opposed the practice, the pressure to abolish slavery generally came from some combination of European colonial powers and economic and demographic shifts [...] Although abolition did eventually occur, there was not a strong internally developed critique of slaveholding based in religious principles."<BR />Kecia Ali, Sexual Ethics and Islam, London: Oneworld Publications, 2006, pp. 42 ff.</ref> | ||
===Sources of slaves=== | ===Sources of slaves=== | ||
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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)]]). | 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==== | ||
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 | 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."<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 22</ref> | ||
As noted above, the Quran itself only mentions acquisition of slaves as captives resulting from battle. These were an important part of the [[Qur'an, Hadith and Scholars:Muhammad and Booty|war booty]] resulting from the defeat of disbelievers.<ref>{{Citation|url=http://etheses.whiterose.ac.uk/508/1/uk_bl_ethos_443314.pdf|title=The legal and social status of women in the Hadith literature (PDF)|author=Salma Saad|page=242|year=1990}}</ref><ref>{{Citation|url=https://books.google.com/books?id=6MC0DwAAQBAJ&pg=PA17|title=Islamic Jurisprudence on the Regulation of Armed Conflict: Text and Context|author=Nesrine Badawi (1 October 2019)|page=17|publisher=BRILL|ISBN=978-90-04-41062-6}}</ref> | As noted above, the Quran itself only mentions acquisition of slaves as captives resulting from battle. These were an important part of the [[Qur'an, Hadith and Scholars:Muhammad and Booty|war booty]] resulting from the defeat of disbelievers.<ref>{{Citation|url=http://etheses.whiterose.ac.uk/508/1/uk_bl_ethos_443314.pdf|title=The legal and social status of women in the Hadith literature (PDF)|author=Salma Saad|page=242|year=1990}}</ref><ref>{{Citation|url=https://books.google.com/books?id=6MC0DwAAQBAJ&pg=PA17|title=Islamic Jurisprudence on the Regulation of Armed Conflict: Text and Context|author=Nesrine Badawi (1 October 2019)|page=17|publisher=BRILL|ISBN=978-90-04-41062-6}}</ref> | ||
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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."<ref>Joseph Schact, [https://archive.org/details/INTRODUCTIONISLAMICLAWSchacht/page/n133/mode/2up An Introduction to Islamic Law], Oxford University Press, 1982 (first published 1964), p. 127</ref> His last comment alludes to occasions when the children Muslim rulers had with their concubines subsequently obtained power. | 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."<ref>Joseph Schact, [https://archive.org/details/INTRODUCTIONISLAMICLAWSchacht/page/n133/mode/2up An Introduction to Islamic Law], Oxford University Press, 1982 (first published 1964), p. 127</ref> 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. | 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."<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, p. 67</ref> 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.<ref>Joseph Schacht, ''Introduction to Islamic Law'', p. 129</ref> An owner would also have to free his slave if he wished to marry her himself.<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 22</ref> | ||
====Other sources of slaves in practice==== | ====Other sources of slaves in practice==== | ||
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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."<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 36</ref> | 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."<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 36</ref> | ||
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 | 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.<ref>Ibid. p. 36-39</ref> | ||
Non-Muslim residents of an Islamic state who failed to pay [[Jizyah|jizya]] or broke their contract with the state could also be enslaved according to some scholars.<ref>{{Citation|url=https://books.google.com/books?id=dyZ-DAAAQBAJ&pg=PA52|title=Slavery in the Ottoman Empire and its Demise 1800-1909|author=Y. Erdem (20 November 1996)|page=26|publisher=Palgrave Macmillan UK|ISBN=978-0-230-37297-9}}</ref><ref>{{Citation|url=https://books.google.com/books?id=z3VoBgAAQBAJ&pg=PA2|title=Muslim and Christian Contact in the Middle Ages: A Reader|author=Jarbel Rodriguez (2015)|page=2|publisher=University of Toronto Press|ISBN=978-1-4426-0066-9}}</ref><ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 39</ref> | Non-Muslim residents of an Islamic state who failed to pay [[Jizyah|jizya]] or broke their contract with the state could also be enslaved according to some scholars.<ref>{{Citation|url=https://books.google.com/books?id=dyZ-DAAAQBAJ&pg=PA52|title=Slavery in the Ottoman Empire and its Demise 1800-1909|author=Y. Erdem (20 November 1996)|page=26|publisher=Palgrave Macmillan UK|ISBN=978-0-230-37297-9}}</ref><ref>{{Citation|url=https://books.google.com/books?id=z3VoBgAAQBAJ&pg=PA2|title=Muslim and Christian Contact in the Middle Ages: A Reader|author=Jarbel Rodriguez (2015)|page=2|publisher=University of Toronto Press|ISBN=978-1-4426-0066-9}}</ref><ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 39</ref> | ||
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===Emancipation=== | ===Emancipation=== | ||
{{Main|Qur'an, Hadith and Scholars:Slavery}} | {{Main|Qur'an, Hadith and Scholars:Slavery}} | ||
The Quran presents the freeing of slaves as a virtuous act, | The Quran presents the freeing of slaves as a virtuous act ({{Quran|2|177}}, {{Quran-range|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. | ||
{{Quote|{{Quran|2|177}}|It is not righteousness that ye turn your faces to the East and the West; but righteous is he who believeth in Allah and the Last Day and the angels and the Scripture and the prophets; and giveth wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor-due. And those who keep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the Allah-fearing.}} | {{Quote|{{Quran|2|177}}|It is not righteousness that ye turn your faces to the East and the West; but righteous is he who believeth in Allah and the Last Day and the angels and the Scripture and the prophets; and giveth wealth, for love of Him, to kinsfolk and to orphans and the needy and the wayfarer and to those who ask, and to set slaves free; and observeth proper worship and payeth the poor-due. And those who keep their treaty when they make one, and the patient in tribulation and adversity and time of stress. Such are they who are sincere. Such are the Allah-fearing.}} | ||
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{{Quote|{{Quran-range|90|12|17}}|And what can make you know what is [breaking through] the difficult pass? (It is) to free a slave And to feed in the day of hunger. An orphan near of kin, Or some poor wretch in misery, And to be of those who believe and exhort one another to perseverance and exhort one another to pity.}} | {{Quote|{{Quran-range|90|12|17}}|And what can make you know what is [breaking through] the difficult pass? (It is) to free a slave And to feed in the day of hunger. An orphan near of kin, Or some poor wretch in misery, And to be of those who believe and exhort one another to perseverance and exhort one another to pity.}} | ||
As in earlier and contemporary near eastern cultures<ref>Brockopp, J. (2000) "Early Maliki Law", Brill: Leiben, p.170</ref>, 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": | As in earlier and contemporary near eastern cultures<ref>Brockopp, J. (2000) "Early Maliki Law", Brill: Leiben, p.170</ref>, 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: | ||
{{Quote|{{Quran|24|33}}|And let those who cannot find a match keep chaste till Allah give them independence by His grace. And such of your slaves as seek a writing (of emancipation), write it for them if ye are aware of aught of good in them, and bestow upon them of the wealth of Allah which He hath bestowed upon you. Force not your slave-girls to whoredom that ye may seek enjoyment of the life of the world, if they would preserve their chastity. And if one force them, then (unto them), after their compulsion, lo! Allah will be Forgiving, Merciful.}} | {{Quote|{{Quran|24|33}}|And let those who cannot find a match keep chaste till Allah give them independence by His grace. And such of your slaves as seek a writing (of emancipation), write it for them if ye are aware of aught of good in them, and bestow upon them of the wealth of Allah which He hath bestowed upon you. Force not your slave-girls to whoredom that ye may seek enjoyment of the life of the world, if they would preserve their chastity. And if one force them, then (unto them), after their compulsion, lo! Allah will be Forgiving, Merciful.}} | ||
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If a person converted to Islam after being enslaved, their emancipation would be considered a pious act but was not obligatory.<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 22</ref> 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.<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', pp. 39-41</ref> | If a person converted to Islam after being enslaved, their emancipation would be considered a pious act but was not obligatory.<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', p. 22</ref> 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.<ref>W. G. Clarence-Smith, ''Islam and the Abolition of Slavery'', pp. 39-41</ref> | ||
===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. {{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.<ref>Irani, K.M. & Silver, M. (editors), [https://books.google.co.uk/books?id=ce7WjBvjENEC&pg=PA87&lpg=PA87 Social Justice in the Ancient World], Connecticut:Greenword Press, 1995, p.87</ref> Martin Klein writes: | |||
{{Quote|Martin. A. Klein, "Historical Dictionary of Slavery and Abolition", p. 218<ref>Martin. A. Klein, "Historical Dictionary of Slavery and Abolition", Lanham, Maryland: Rowman and Littlefield, 2014, p. 218</ref>|We know much more about slavery under the Sassanians (224 CE to 647 CE), in part because there was extensive Sassanian legislation on slavery. [...] A slave who converted to Zorastrianism could purchase his freedom. Slaves could not be executed for a single crime. Freeing a slave was considered a good deed. Slaves had the right to property and three days of rest a month.}} | |||
It was also common in ancient Rome to free slaves, so much so that Augustus [[w:Lex Aelia Sentia|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.<ref>William Smith, "A Dictionary of Greek and Roman Antiquities", London: Taylor and Walton, 1842, p. 869</ref> | |||
{{ | ===Lack of sexual consent and slave marriages=== | ||
{{Main|Rape in Islamic Law}} | |||
====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: | |||
{{Quote|{{Quran-range|23|1|6}}|Successful indeed are the believers Who are humble in their prayers, And who shun vain conversation, And who are payers of the poor-due; And who guard their modesty - '''Save from their wives or the (slaves) that their right hands possess''', for then they are not blameworthy}} | {{Quote|{{Quran-range|23|1|6}}|Successful indeed are the believers Who are humble in their prayers, And who shun vain conversation, And who are payers of the poor-due; And who guard their modesty - '''Save from their wives or the (slaves) that their right hands possess''', for then they are not blameworthy}} | ||
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{{Quote|{{Quran|33|50}}|'''O Prophet! Lo! We have made lawful unto thee''' thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee as spoils of war''', and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - '''We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess''' - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful.}} | {{Quote|{{Quran|33|50}}|'''O Prophet! Lo! We have made lawful unto thee''' thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee as spoils of war''', and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - '''We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess''' - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful.}} | ||
The Quran commands that marriages be arranged for righteous slaves: | |||
{{Quote|{{Quran|24|32}}|And marry the unmarried among you and the righteous among your male slaves and female slaves. If they should be poor, Allah will enrich them from His bounty, and Allah is all-Encompassing and Knowing.}} | |||
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 {{Muslim|8|3432}}). | |||
{{Quote|{{Quran-range|4|22|24}}|And do not marry those [women] whom your fathers married, except what has already occurred. Indeed, it was an immorality and hateful [to Allah] and was evil as a way. Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-'''Also (prohibited are) women already married, except those whom your right hands possess''': Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise.}} | |||
The next verse grants poor believers permission to marry from among the believing slave women. | |||
{{Quote|{{Quran|4|25}}|And whoever among you cannot [find] the means to marry free, believing women, then [he may marry] from those whom your right hands possess of believing slave girls. And Allah is most knowing about your faith. You [believers] are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.}} | |||
====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.<ref>{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press|access-date=October 20, 2021}}</ref> 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."<ref>Joseph Schact, [https://archive.org/details/INTRODUCTIONISLAMICLAWSchacht/page/n133/mode/2up An Introduction to Islamic Law], Oxford University Press, 1982 (first published 1964), p. 127</ref> 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.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, pp. 39-40</ref> 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).<ref>Ibid. p. 153-5</ref> | |||
{{Quote|Kecia Ali, Marriage and Slavery in Early Islam, pp. 39-40<ref>Kecia Ali, [https://archive.org/details/marriage-and-slavery-in-early-islam/page/39/mode/2up Marriage and Slavery in Early Islam], Massachussets: Harvard University Press, 2010, pp. 39-40</ref>|Muslim law allowed slaves of both sexes to marry with their owner's permission, and anecdotal evidence shows that they did. They could validly marry either other slaves or free persons, though never their own masters or mistresses. Men could have sexual access to their female slaves only as long as these slaves were unmarried. This attempt to impose sexual exclusivity for female slaves was rare in antiquity; in fact, to be a female slave was generally to have no claim to sexual exclusivity. But for the Muslim jurists, slaves' liaisons fell under the divine purview: marriage for slaves was a way of ensuring that they did not transgress the boundaries of moral conduct set forth by God. Allowing slaves to marry, however, risked jeopardizing their owners' authority and prerogatives to use their labor and oversee their movements. Owners' control was reaffirmed through regulating the formation and dissolution of marriages and by insisting on the rights of masters to control slaves' labor regardless of marital status.<BR /> | |||
[...]<BR /> | |||
For free males, majority determined their scope for legal action in marriage, but majority might or might not make a difference for enslaved males. The nonconsenual marriage of minor male slaves, like minor sons, was universally accepted, though seldom discussed and presumably rare. A master would gain little by marrying his male slave off before maturity, whereas marrying off a female slave would give him the right to the dower thereby garnered, as well as ownership of any offspring she bore to her husband. Could an adult male slave be compelled to marry? On this point, jurists disagreed. An adult slave's male-ness, which would have given him full and sole control over his marital destiny if he were free, stood in tension with his status as a slave. Malik and his followers allowed an owner to marry off his male slave without the slave's consent; in this matter, slave men were like female slaves, vigin daughters, and minor sons. Enslavement either feminized or infantilized the male with regard to consent. Formative-period Hanafi texts do not discuss explicitly whether male slaves could be married off without their consent, and later texts are split, though the dominent view favors compulsion. Both Hanafi and Maliki authorities held that though the owner's permission was required for the valid marriage of a male slave just as for a female slave, if a male slave married before obtaining permission, his master could either dissolve the marriage or authorize it after the fact.<BR /> | |||
Shafi'i - concerned, as with the minor non-virgin, with making sure every legal claim was respected - diverged on both points. He disallowed the master's after-the-fact ratification of a slaves' marriage. But not only was the master's permission vital for a valid contract, so was the slave's explicit consent: the contract was null if either had not consented in advance. Gender interacted with enslavement to define a male slave's agency for Shafi'i. As a slave, he could not marry without his master's persmission, but as a man, he colud not be compelled to marry. A certain irreducible masculinity prevented an adult male slave from losing the rlight to sexual self-determination for Shafi'i; he explicitly contrasts the male slave with a female slave, who was perpetually subject to coercion.<BR /> | |||
In contrast to the male slave and the free female, sexual and marital self-determination was never available to an enslaved femle. Her master's right of possession granted him licit sexual access to her, and if he married her off that right passed to her husband.}} | |||
Although Muhammad's men seem to have had intercourse with captive mushrik women whom they had captured during the expedition to Awtas/Autas ({{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.<ref>{{Citation|url=https://www.islamweb.net/en/fatwa/272452/|archiveurl=https://web.archive.org/web/20201227215257/https://www.islamweb.net/en/fatwa/272452/|title=Ruling on sexual intercourse with one's polytheistic slave-woman|date=November 14, 2014|publisher=Islamweb.net}}</ref> | |||
Early scholars of fiqh devised a workaround for this restriction, including the allowance of raping younger captives who were mushrik: | |||
{{Quote|{{citation| last=Friedmann | first=Yohanan| title=Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition|publisher=Cambridge University Press|ISBN=9780511497568|pages=107-108|date=August 2009|series=Cambridge Studies in Islamic Civilization|url=https://www.cambridge.org/core/books/tolerance-and-coercion-in-islam/603974A9EFEDC7FBD00B38D0845AECAA|archiveurl=https://web.archive.org/web/20180614220208/https://www.cambridge.org/core/books/tolerance-and-coercion-in-islam/603974A9EFEDC7FBD00B38D0845AECAA}}|According to a report included in the ''Jāmi‘'' of al-Khallāl (d. 311 A.H. / 923 A.D.), '''Ibn Hanbal maintained that | |||
:'''if Zoroastrian and idolatrous women are taken prisoner, they are coerced into Islam; if they embrace it, sexual relations with them are permissible''' and they can (also) be used as maidservants. If they do not embrace Islam, they are used as maidservants but not for sexual relations (''wa idhā subhīna (sic) al-majūsiyyāt wa ‘abadat al awthān ujbirna 'alā al-Islām fa-in asl ama wutiʼna ma 'stukhdimna wa in lam yuslimna 'stukhdimna wa lam yūtaʼna''). | |||
The contradiction inherent in this passage is evident: despite the unspecified coercive measures, some of the women in question refused conversion and, consequently, the masters could not take full advantage of their services. If the only way to embrace Islam is pronouncing the declaration of faith, the conversion of a defiant woman may not be possible: it is not always feasible to force someone to utter the shahāda. '''According to a tradition transmitted on the authority of Hasan al-Basri, the Muslims used various devices to attain their objective: they turned the Zorastrian slave-girl toward the Ka‘ba, ordered her to pronounce the shahāda and to perform ablution. Her master then engaged in sexual relations''' after she had one menstruating period while in his house. Others hold that the master must teach the slave-girl to pray, to purify herself and to shave her private parts before any intercourse. The participation of the girl in this procedure is minimal, and this wording may be interpreted us a considerable lowering of the conversion requirements so that the girl becomes eligible for sexual intercourse as expeditiously as possible. Among the early traditionists, only '''a few were willing to go beyond this and allow sexual relations with a Zoroastrian slave-girl without insisting on at least a semblance of conversion'''. | |||
Shafi‘i's treatment of the issue is slightly different. Speaking of grown-up Zoroastrian or polytheist women taken into captivity, he maintains that no sexual relations with them are allowed before they embrace Islam without bringing up the question of converting them forcibly. If the female captives are minor but were taken captive with at least one of their parents, the ruling is the same. '''If, however, the girl was captured without her parents, or one of her parents embraced Islam, she is considered a Muslim and is coerced into embracing it''' (''nahkumu lahā bihukm al-Islām wa nujbiruhā ‘alayhi''). '''Once this happens, sexual relations with her are lawful.'''}} | |||
====Muhammad had intercourse with his slave girl Maria==== | ====Muhammad had intercourse with his slave girl Maria==== | ||
{{Main|Maria the Copt (Mariyah Al-Qibtiyyah)}} | |||
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 [[w:Maria_al-Qibtiyya|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. | Muhammad had a child with a slave girl of his, known as [[w:Maria_al-Qibtiyya|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. | ||