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Slavery in Islamic Law: Difference between revisions
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===In Islamic law=== | ===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> | 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> 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 and the perpetrator would face the hadd punishment (see [[Rape in Islamic Law]]). | ||
Professor Jonathan A. C. Brown has written extensively on this topic: | |||
{{Quote|Jonathan A. C. Brown (2019) ''Slavery & Islam'', pp. 281-282<ref>Jonathan A.C. Brown (2019) ''Slavery & Islam'', London: Oneworld Publications, Chapter 7, pp. 281-282, ISBN 978-1-78607-635-9</ref>|As noted earlier, marriage and a male's ownership of a female slave were the two relationships in which sex could licitly occur according to the Shariah. In marriage, the consent of the wife to sex was assumed by virtue of the marriage contract itself. In the case of the slave-concubine, consent was irrelevant because of the master's ownership of the woman in question. As Kecia Ali has noted, there is no evidence for any requirement for consent from slave women in books of Islamic law in the formative centuries of Islam.<BR /> | |||
[...]<BR /> | |||
In the Shariah, consent was crucial if you belonged to a class of individuals whose consent mattered: free women and men who were adults (even male slaves could not be married off against their will according to the Hanbali and Shafiʿi schools, and this extended to slaves with ''mukataba'' arrangements in the Hanafi school). Consent did not matter for minors. And it did not matter for female slaves, who could be married off by their master or whose master could have a sexual relationship with them if he wanted (provided the woman was not married or under a contract to buy her own freedom).}} | |||
Like wives, a slave woman had a right to complain in court if intercourse with her owner caused her physical harm (see [[Rape in Islamic Law]] for details). However, on this point Brown notes that "Both wives and slaves had the same recourse to courts or members of the community. Unlike wives, however, slaves were almost by definition cut off from support networks other than their owners".<ref>Ibid. p. 132</ref> | |||
Regarding slave marriages, 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> | |||
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> | 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> | ||
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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'''. | 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.''' | 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.'''}} | ||
==Slave markets, harems, and eunuchs== | ==Slave markets, harems, and eunuchs== | ||