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Slavery in Islamic Law: Difference between revisions
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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 /> | 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 | 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 could not be compelled to marry. A certain irreducible masculinity prevented an adult male slave from losing the right 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.}} | 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.}} | ||
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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.'''}} | 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==== | ||