Ever since the abolition of slavery in the 20th century, numerous Muslim scholars have addressed accusations against the immorality of slave laws by explaining their presence in both the Qurān and the traditions. Much of the accusation appears to be rooted in the presumption that if a religion, which claims to be the final religion, and a Prophet (p), who claims to be a role model for all times, could approve of slave laws, then it necessarily follows that these laws must continue to exist and that they are moral.
Though numerous books and articles have been written in the Arabic and Persian language, amongst Shī’ī scholars one can find these works in English:
- Slavery, by ‘Allāmah Sayyid Sa’īd Akhtar Rizvī
- Slavery in Islam, in 82 Questions, by Āyatullah Sayyid ‘Abdul Ḥusayn Dastghaib Shīrazī – translated by Sayyid Athar Husayn S.H. Rizvi
- How does Islam attest slavery, in 180 Questions Enquiries About Islam Volume One: The Practical Laws, by Āyatullah Naṣir Makārim Shīrāzī – translated by Shaykh Shahnawaz Mahdavi
What follows is an English translation of Dr. Mohsen Kadivar’s article on slavery, titled: The Issue of Slavery in Contemporary Islam. In the paper, Kadivar attempts to offer a justification for the laws of slavery, vis-a-vis their historical context, along with arguing for their absolute dismantling in the present day. This paper was originally read at the 2nd International Human Rights Conference with the theme Mabānī Naẓarī Ḥuqūq Bashar (Theoretical Foundations of Human Rights), at Mufīd University in Qom, on 20th April, 2004. The article was also later published in Haqq al-Nas (The Right of People in Islam), Kavir, Tehran, 2008, chapter 12, pp. 341-378.
This specific translation was originally published online on Iqra Online. Another translation done by Nikky Akhavan will be published late next year in Human Rights and Islam, translated by Nikky Akhavan, Series in Translation: Modern Muslim Thinkers by the Institute for the Study of Muslim Civilizations (ISMC) jointly with Edinburgh University Press.
This specific translation was carried out for a number of reasons. Foremost, the issue of slavery has been one of the most controversial issues Muslims have had to address in recent times. The emotions this subject can evoke have even led many to the path of apostasy and according to research conducted by the Yaqeen Institute in 2016, slavery was one of the major sources of doubt in Islam amongst American youth:
“Similarly, the issue of slavery in Islam has become a recurring topic of concern, particularly as younger American Muslims are now more sensitive to the issues of social injustice around them. As one scholar who gave an in-depth lecture on this topic put it, “The ‘Islam came to abolish slavery’ response is simply insufficient.””1
As such, an adequate response needs to be given to silence critics and to invalidate the source of doubt. Interestingly, Jonathan A.C. Brown, a professor of Islamic studies at Georgetown University, described this paper as the “most sophisticated and comprehensive discussion of the problem of slavery and Islamic law.”2 Secondly, this specific translation contains additional footnotes and explanatory remarks that would generally have been missing in an academic publication. Hence, numerous comments have been made throughout the paper, explaining technical Arabic legal terms and as well brief observations on arguments that perhaps do not stand up to scrutiny.
On a final note, like all translated projects, the content and arguments made by the author do not necessarily reflect the opinions of the translators. On the contrary, they may even hold certain reservations regarding some of the arguments made, however they acknowledge that the paper itself is worthy of contemplation, critique and analysis.
Sadiq Meghjee, Syed Ali & Syed Hadi
The Issue of Slavery in Contemporary Islam
Importance of the Discussion
The middle of the 19th century saw the beginning of a movement to abolish slavery. This eventually led to the eradication of slavery – in its traditional meaning – from the world, to such an extent that today the general populace of the world and their customary perceptions deem slavery to be condemned, detestable, oppressive and unreasonable. Today, the rejection of slavery – be it in its traditional or new meaning – is considered a necessary prerequisite of human rights. From one perspective, slaves no longer exist for one to discuss and debate its laws, except in their historical context. However, there are three reasons why the issue of slavery in contemporary Islam is necessary to discuss:
1) Various verses of the Qurān refer to the notion of male and female slaves. In the sunnah of the Prophet (p) and the lives of the Imāms (a) we see that discussions on slaves are not negligible. A question posed here is that if a religion which claims to be the final religion and proposes to present an eternal exemplar for all, comes forth with a book that claims to be an eternal source of guidance, how can something like slavery, that is deemed detestable and oppressive – or at the very least, considered against contemporary perceptions – be defended? What should we do with these verses and ḥadīth?
2) Some contemporary Muslim scholars, be it philosophers, jurists, exegetes, or scholars of ḥadīth, vocally defend the concept of slavery as described within religious texts and consider it to be a matter of consensus. Further, they attempted to introduce it as something that is in accordance with the judgement of the intellect. As an example:
“In Islam, alternatives and arrangements have been made so that slavery is gradually abolished. However, this does not mean that slavery is absolutely condemned in Islam. In a legal3 war4 if the Muslims defeat the disbelievers and take them as prisoners, a disbeliever who is not a prisoner and under the control of a victorious Muslim, has to be considered a slave and the rules of slavery are applicable upon that individual. Even if such a war takes place today, the rule is the same. It is not that slavery is completely abolished and that the Book of Emancipation5 should be done away with. However, slavery during those days was based on racial differences. Blacks and vulnerable people would be trapped and then sold. If one is in a situation where they have to choose between killing a defeated enemy or to take them as prisoners, which option is more humane? If enemy prisoners are freed, they will spread the same corruption. If a prisoner is killed, then their life ends, and they are unable to return back to their previous state. However, if they are enslaved, it is possible for them to gradually get trained within Dār al-Islām and become a worthy human being. In any case, the issue of slavery is generally accepted in Islam and we defend it.”6 7
This view is in complete contradiction to the standards of human rights today. A critical analysis of this opinion is not just a discussion for yesterday, rather it is a discussion for today.
3) Most Muslim countries – including Iran – have accepted all international covenants and international conventions for abolishing slavery and have undertaken a pledge to eradicate all instances of slavery. Reflecting on the religious teachings regarding slavery and responding to scholars who defend it is one of the requirements of today so that the foundations of human rights in Islamic societies is solidified.
We live in an era where one speaks in universals and makes exaggerated claims concerning the compatibility of religion with human rights. Today we have no choice but to engage in rigorous a posteriori study of religious laws with human rights and make the position of religious people very clear and apparent with regards to these modern challenges. Rest assured, staying away from issues, silence, holding back and buying time is not the solution to the problem.
Besides the inherent benefit of the discussion on slavery in contemporary Islam, the discourse also has one accompanying benefit. This specific study is a good criterion to evaluate the capabilities of contemporary Islamic thought, especially Islamic jurisprudence. How one responds to this issue is not restricted to just this topic, rather it is reflected in the responses given to other contemporary challenging Islamic issues. The value of this accompanying benefit is not less than the inherent benefit. Failure to give an adequate response to even just this single issue is risky and a problem for Islamic thought.
In this paper, we are not concerned with the topic of ‘Slavery in Islam’. In the context of time, when certain types of slavery were popular and were accepted practices by society, justifying them is not too difficult. Our discussion concerns the difficulty of justifying slavery in contemporary Islam – more precisely in the last century (that is, 14th century Solar Hijrī, 14th century Lunar Hijrī and the beginning of the 20th century of the Common Era), a time when the general perceptions of society considers slavery absolutely unjust and inhumane.
On the other hand, the concept of ‘slave’ and a ‘person under subjection’ is a lot more wide-ranging than before. In discussions concerning employment rights, children and women rights, one can find many instances that could be qualified as ‘slavery’. Many instances that can be qualified as slavery in modern times were not even considered slavery before a century ago. The subject of this paper is what Islamic thought defines as ‘abd, amah or mamlūk and not everything that is considered an instance of slavery in today’s understanding. Until the topic of traditional slavery (which is very close to the technical definition of slavery in Islamic texts) is not clarified, one cannot engage in a fruitful discussion on slavery in modern times (at least in the realm of Islamic thought).
Due to many similarities amongst the various Islamic schools of thoughts on the general discussions concerning slavery, there are a few reasons why we are presenting our discussion from a Shī’ī perspective:
- In order to provide further depth to the discussion of the subject matter
- There are already independent works written on this topic from the perspective of the Ahl al-Sunnah,8 however the Shī’ī perspective has rarely been studied independently
- A critical analysis of the opinions put forth by proponents of slavery in our time and in our society9 is considered a prevalent
This paper is comprised of three parts. The first part deals with the rules of slavery in contemporary Islam – a description of the opinions of those who defend slavery. The second part compares these laws with human rights and the last part takes a critical look at two completely contradictory opinions regarding slavery in contemporary Islam.
Due to a severe lack of research on this subject, I hope this small step can lead to resolving this difficulty and I hope to benefit from critiques and feedbacks of scholars.
Part One: Slave Laws
The terms riqq, raqabah, mamlūk, mamlūkah, mawla, ‘abd and amah in Arabic are synonymous with the words bardeh, bandeh, ghulām and kanīz in Farsi.10 They are antonyms for the Arabic words ḥurr or hurrah and azād of Farsi.11 A slave is a human who happens to be a property of another human and all laws that are rooted in the notion of ownership are applicable upon them, either completely or partially.
The rebuttable presumption12 in this discussion is the ‘principle of freedom’ or that one is not owned by another human. Hence, freedom is in accordance with the rebuttable presumption and does not need any evidence. What needs evidence is slavery.13 All humans are free unless proven otherwise.
Humans can be divided into different categories from various perspectives. Gender, religion, age of maturity, war and knowledge are some of these perspectives. A sixth division is from the perspective of them being free or slaves. Humans are either ḥurr and ḥurrah or ‘abd and amah. This division, like the other divisions, reflects the differences in rights and legal responsibilities of its individuals.
Many contemporary scholars have remained silent on the topic of slavery in their works. However, in these very same works one can extract various points regarding slavery. Others yet have explicitly written about it. We will extract these rules regarding slavery from the explicit opinions of contemporary scholars and present them over the following three chapters: Causes of Enslavement, Rights and Rules for Slaves, and concluding with Causes of Emancipation.
Chapter One: Causes of Enslavement
As per the principle of freedom, slavery needs a reliable legal cause. Altogether, seven legal causes have been presented for enslavement and the moment any one of these causes come into existence for an individual, they become the possession of another human, the rights that they enjoyed as a free human cease to exist and all responsibilities expected of a slave are imposed upon them.
1) Getting captured in war: All non-Muslims who are captured in a war between the Muslims and non-Muslims, are legally considered mamlūk. There are three courses of actions one can take with respect to men who were taken as prisoners of war: a) freedom without any recompense, 2) freedom in exchange of monetary compensation (fidyah) or Muslim prisoners or 3) enslavement. A Muslim ruler decides in this regard and in the case that enslavement or monetary compensation is chosen as an option, then both of these are considered instances of spoils of war.
Women and children residing on the newly conquered land are also considered spoils of war. Through conquering land, the Muslims make them their slaves. From all the movable spoils of war – be they physical things or humans – first and foremost the best and most valuable of them and that which the ruler – as per his absolute authority – considers to be appropriate, is separated and considered war booty (fay’) for the Imām.14 After removing the one-fifth tax (khumus) from it, the remainder is distributed amongst the soldiers that were present in the war. In one way or another, every soldier becomes an owner of a portion of the spoils, including the male and female slaves. The primary condition for enslavement in this scenario is their disbelief, whether they are an obstinate disbeliever (kāfir ḥarbī) or from the people of the book (Ahl al-Kitāb), as long as they are not mu’āhid,15 mus’tamin16 or they are disloyal dhimmīs. It is clear that a Muslim cannot become a mamlūk through this route. If a prisoner becomes a Muslim after they are captured, their conversion is not enough to nullify their enslavement and instead, they continue to remain a slave.17
This specific law is not restricted to just those present in the battlefield or just the soldiers, rather all residents living in Dār al-Ḥarb, whether they are soldiers or civilians, men or women, children or elders. As long as their land was conquered by the Muslims, that is sufficient for their inclusion in the aforementioned law.
Becoming a prisoner of war and subsequently a slave, is the natural conclusion of a war between the Muslims and non-Muslims. It is also not just restricted to an offensive war, or just a defensive war. As a matter of fact, this cause of slavery is not even conditioned to the presence of the Prophet (p) or an Imām (a) or even their permission. Only in a situation where a war was initiated without their (a) permission while at the same time seeking their permission was easy do the spoils or war belong to them (a). In any case, in the era of occultation, as per precaution, taking possession of all the spoils from a war that took place between the Muslims and non-Muslims, albeit due to wanting to expand the borders or to specifically acquire these spoils, is only permissible and legitimate once the one-fifth tax has been deducted form it.18
War was the most important cause of enslavement and majority of the slaves were acquired through this method. Regarding this law a number of points are worthy of noting:
1) Enslavement through war was not restricted to soldiers or whoever happened to be present in the battlefield, rather it is inclusive of all citizens of Dār al-Ḥarb which falls into the hands of the Muslims.
2) Roughly four-fifth of all slaves acquired through war become the specific property of the soldiers and about one-fifth of them were at the disposal of the ruler and the Imām. In other words, majority of the slaves become personal property of other humans, not the property of the state and government.
3) Male prisoners of war become slaves with the approval of the Walī Amr and none of the enemies remain prisoners of war after the war is over.
4) Slavery is not restricted to just a legitimate war. There is no difference in the spoils of war, including men, women and children that were taken as prisoners, acquired through an illegitimate war or a legitimate one, once the one-fifth tax has been deducted from them especially in the era of occultation.
Unlike the opinion of some other great scholars,19 war is not the only legitimate way in Islam to acquire slaves. In religious texts we find a number of other ways through which slaves can be acquired.
2) Slavery through overpowering: If anyone from Dār al-Ḥarb – whether they reside there or not – is taken by kidnapping, betrayal, deceit, plunder, captivity and force, whether by civilians or the military, but without the existence of a war, and are then brought to Dār al-Islām, they are to be treated as spoils. After deducing the one-fifth tax from them, they become the property of the kidnapper, they can use them how they want and their selling and buying becomes permissible. Even if these people are kidnapped by non-Muslims, a Muslim is allowed to purchase them from the non-Muslims even with the knowledge that they were kidnapped and taken by force, or that the non-Muslims had taken them as captives outside of a legitimate war.20
The permissibility of taking them as slaves through means other than war is signified in a number of traditions.21 The main condition in this scenario is similar to the condition in the first cause – an individual must not have been a Muslim at the time of their kidnapping. A point worthy of mentioning here is that though utilizing methods such as kidnapping and deceit are against Islamic law and considered ḥarām, yet these laws are only applicable to things that are considered to be respected, hence it is not an absolute law. Since an obstinate disbeliever is devoid of any legal respect, salvaging them through any means is permissible and according to the Sharī’ah, concepts like theft, deceit, betrayal and their likes do not apply on them. On the contrary, their entrance to Dār al-Islām could be a source of insight and guidance for them. It is obvious that slavery through means of overpowering and force was mostly taking place against women and children.
3) Slavery through a purchase made from a guardian: If an obstinate disbeliever – for any reason – is prepared to sell any member of their family, be it their wife, sister, daughter, or a young child, purchasing them is permissible and they are subsequently considered female slaves. The evidence for this is that obstinate disbelievers are like war booty for the Muslims and salvaging them through any means is permissible. In reality, ownership is granted due to a Muslim’s right over a disbeliever, not through the purchase transaction, because it is clear that such a transaction is invalid. In the same vein, based on the consensus and the traditions, buying people that the misguided ones had taken as captives from an obstinate disbeliever is permissible and the implications of a valid purchase are applied on it. Even though slaves acquired through the second and third way are for the Imām (a), or at the very least a one-fifth tax is applied on them, in the era of occultation of the Imāms (a) an exception is made for the Shī’a to make use of females enslaved through this method.22
4) Transfer of slavery from parents to their children: If a father and a mother became slaves through one of the legally established ways, all children born during their time as slaves, are also considered slaves. Therefore, slavery is passed on from parents to their children. The parents’ conversion to Islam does not prevent the transfer of slavery to their children. The children of slaves are like growth in an asset and belongs to the slave owner.23 Although, if one of the parents is free, the child is also born free.
Hence, it can be said that not every human is born free, rather some are born into slavery.
5) Enslavement through confession: If a sane and bāligh person confesses to their slavery, without being forced, their confession is accepted. This is as long as they are not popularly known to be free and their genealogy is also not legally known.24 There is no difference in this ruling between a Muslim and non-Muslim or a man and a woman. In fact, it is not even important if there was a motivation to confess to slavery, such as poverty or something else.
6) Slavery of a foundling in Dār al-Kufr: In Dār al-Kufr if a lost child without a guardian and whose birth could not have been through Muslim or Dhimmī parents is found, taking them as a slave is permissible.25 Although if the child’s protection is dependent on taking them under one’s own guardianship, then such a thing is a collective obligation (al-wājib al-kifāyī).
7) Purchasing someone from the marketplace of a non-Muslim: If a person becomes enslaved through any means, even if it is not from one of the six causes mentioned above and is being sold in the marketplace of the non-Muslims, it is legal and permissible for a Muslim to purchase them. It is also not required to inquire about their purchase history and how they were made a slave. In fact, even if the Muslim purchaser has knowledge that the person was made a slave through means other than war, or by force and kidnapping, or because they were sold by their husband, father, or brother into slavery, purchasing them is permissible and making use of them is legal. All in all, with respect to purchasing a slave from the marketplace of the non-Muslims, investigating and determining whether they became slaves through legitimate means or not is not necessary. Furthermore, even when there is certainty that the cause of their enslavement was not through legal means, purchasing them and making use of them as slaves is still permissible. Even if the slave is a Muslim and cannot bring legal evidence (bayyinah) to establish their freedom, they are inclusive of the ruling above. Through this means, no matter where in the world there are slaves and through whatever means they had become slaves, it is permissible for the Muslims to make use of them and owning them is legitimate. Even though this cause is not like the previous six in the sense that it does not ‘create’ the notion of slavery, however the permissibility of transferring slaves to the marketplace of the Muslims and Dār al-Islām is understood from it and in a sense, it is like the creation of legal slavery.
Regarding the seven methods mentioned above, there are some points worth mentioning:
1) All of these causes existed in other societies, cultures and religions as well and Islam is not the one that institutionalized or innovated any of these practices.26 Hence, laws of slavery are not considered laws that were institutionalized by Islam, rather they were rules that predate it and were simply approved by it.
2) None of these laws are specific to a certain Islamic school of thought. Rather some of the Islamic schools who were in political power during the different eras played a much greater role than Tashayyu’ as far as discussing these causes and acting upon them was concerned.27
3) The evidence for all seven causes is the sunnah and the traditions that have been transmitted from the Prophet (p) and the Imāms (a) as well as the consensus of the jurists. None of these causes have a Qurānic basis for them. In other words, the Qurān has not negated or affirmed any of these causes of slavery, although it has spoken about prisoners of war and the rights and laws of slaves, especially their emancipation. It is also clear that there is a difference between a prisoner of war and a slave.
4) The causes of slavery would have never been actualized if the Muslims never attained a dominant position. In other words, in a time when Muslims are politically equal on an international level and are not considered a super-power, then these causes will also weaken or completely diminish. Under conditions where one is weak, the situation is such that one will receive an eye for an eye treatment. Taking non-Muslims as slaves will result in the Muslims becoming enslaved.
Chapter Two: Rights and Laws of Slaves
What is meant by rights of slaves are those responsibilities that a slave owner has in relation to the slave. Laws of slaves are those responsibilities that a slave must fulfil in relation to their owner.
1) The financial obligations (nafaqah) of a slave are upon the owner. According to this, expenses such as food, clothing and residence are the responsibility of the owner. In the scenario that the work of a slave does not pay sufficiently for their expenses, ensuring that their expenses are met is the legal responsibility of the owner.28
2) A master has no right to force their slave to do something against the law. In other words, a male or female slave is not allowed to obey the master outside the folds of law. The Prophetic tradition, ‘There is no obedience to creation in the disobedience of the Creator,” is the evidence for this rule.29 The boundaries of what is legally permissible are from the duties that a slave has to obey, hence everything demanded from the slave is legal is from one of their rights.
3) In a case where there is no specific legal rule for slaves, the slave enjoys equal and similar rights as free people. In other words, a specific law concerning slaves requires legal evidence, not the opposite.
4) A master has no right to separate a child from its mother who happens to be a female slave during the period of its dependency on her.30 Therefore, a master cannot sell the child during the period it is breastfeeding and before the age of discernment (tamyīz).
5) A disbeliever cannot initially become a master of a Muslim slave. If a non-Muslim slave converts to Islam, the disbeliever master is responsible for selling them to a Muslim and to take its price.31
6) It is better for the master to consider the slave as a trust from God. They should act friendly, tolerantly, gracefully and fairly with them. A master should act justly with the slave, abstain from oppressing them and should not abandon love and forgiveness towards them.32
Most Important Slave Laws
1) Male and female slaves are the property of their master and a master is legally permitted to make use of their property in anyway appropriate. The contentment of a slave is not a condition in anything that the master does with the slave. Within the domain of permissible acts, a slave is responsible for satisfying the master. The slave should eat and drink whatever the master specifies, wear whatever the master determines, should reside wherever the master has granted it a place, it should adorn it self the way the master says and speak and behave the way the master wishes. The absolute nature of the verse [16:75] a slave [who is] owned and unable to do a thing is not inclusive of this.
2) A slave does not have any ownership without the permission of the master. If a slave acquires something through any means, for example, if it had some property at the time they were initially enslaved, or it was inherited by them, or it was gifted to them, all of this becomes the property of the master. Unless of course the master permits it to own something.33
3) A slave does not have any right to do work they themselves prefer, rather they have to perform those things that the master has asked them to do. The payment that a slave gets for their work belongs to the master.
4) A male and female slave do not have the right to get married without the permission of the master.34 If a master allows the slave to get married, the financial obligation and the mahr is the responsibility of the master. If, however, the wife of a slave also happens to be a slave woman, then the mahr is essentially the property of her master, not the female slave’s.
5) The moment married men and women are taken as slaves, their marriage contract is nullified and it does not require a divorce, even if they both happen to become slaves of the same master.
6) The ownership of a master in relation to his female slave is in the same ruling of marriage. Hence, he is allowed to derive all types of sexual pleasure from the female slave.35 In these sexual activities, first and foremost, the satisfaction of the female slave is not at all necessary, and secondly it is not required for the female slave to be a Muslim or from the Ahl al-Kitāb. Even if she happens to be a disbeliever and polytheist, this is permissible. Thirdly, with respect to deriving sexual pleasure – unlike in permanent marriage – there is no rule restricting the number of female slaves to four. However, all forms of sexual activities of a woman with her male slave are prohibited without marriage. Male slaves are in this regard considered strangers in relation to their female master.36
7) Other than the right a master has to marry off his female slave – even without her satisfaction – to his own slave or the slave of another (with his master’s permission), or to another free man,37 he also reserves the right to give his female slave to another man or to one of his slaves, without her being married to him and without the need for her satisfaction. In this act, known as taḥlīl, there is no requirement to determine a mahr or a time period. The only requirement is the permission to benefit. Through taḥlīl all sexual encounters are permissible, unless a master makes specific exceptions.38
8) With the permission or command of the master, a male slave can marry a free woman and a female slave can marry a free man. In the case that a female slave sees that a master is in a spousal relationship with another woman, a master is not allowed to derive any type of sexual pleasure from her. 39
10) A master has the right to nullify the marriage of his own male and female slave without pronouncing a divorce. In other words, it is enough for him to inform them that they are separated.42 The waiting period of a divorced female slave is two periods of purity and the waiting period of a widowed female slave is two months and five days (half of that of a free woman).43
11) It is not obligatory on a female slave to cover her head, hair and neck – be it in prayers or outside of prayers.44 The veiling of free women and girls is different than that of a female slave.
12) A master has the right to separate a child of a slave from its slave parents after it reaches the age of maturity and discernment and the master can even sell the child.
13) A master – be it a male or female, a scholar or layman, just or unjust – has the right to implement the legal punishment on a slave that does anything wrong and punish it, without the need to refer to a judge.45 It is obvious that a master can also implement the ta’zīr on the slave.46
14) The legal punishment of a slave is lighter than that of a free person and generally speaking it is half of that of a free person. For example, a slave who commits adultery – whether it was a muḥṣin or a muḥṣinah47– is 50 lashes.48
15) The blood money of a slave is its price, as long as the blood money does not exceed that of a free man. Otherwise, it is not obligatory to pay more than the amount of blood money of a free man.
16) One of the conditions of retribution for a person or a limb is that the crime was committed by individuals of the same category. If a free man or a free woman intentionally kills a slave, there is no retribution for that act. If the master does not forgive the killer, then the killer has to pay the price of the murdered slave to the master, as long as the price does not exceed the price of blood money for a free man. However, if a slave intentionally kills a free man or free woman, the ‘guardian of the blood’ has the choice to get the slave executed as retribution or to take it as their own slave.49
17) A master inherits from their freed slave under certain conditions (wilā ‘itq), however a freed slave does not inherit anything from their master.50
What has been mentioned are not all the laws pertaining to slaves, rather what are considered to be the most important of them. They have been collected from the works of prominent scholars and have been put together. These selected laws give us a complete picture of slavery in the opinion of its proponents.
Chapter Three: Causes of Freedom
Being enslaved is not from the essential attributes of humans and it can be removed through certain means. The ways through which freedom from slavery can occur is divided into three: by coercion, by necessitation and by choice. Causes of coercion are those matters which legally and in it of themselves lead to the freedom of a slave, without requiring the satisfaction of the slave or the permission of the master. The causes of necessitation are those matters that make it legally obligatory on an individual to free one or more slaves in the way of God. In laws dealing with causes of coercion specific slaves are freed, whereas in causes of necessitation, only a number and general rules regarding a slave or slaves are mentioned. As for whether an individual fulfills this latter religious obligation or not, or which specific slave is freed, is in the hands of the individual.
Causes through choice are those means by which a master guarantees the freedom of a slave. All these methods in and of themselves are legally recommended (mustaḥabb), and once enacted the slave is free and there is no possibility of their enslavement again. Causes of choice are unilateral legal contracts. In causes of choice the satisfaction, request and commitment of a slave are a condition. We will briefly look into these three types of causes:
Freedom Through Coercion
1) Owned by Next of Kin: No person can become an owner of their father, mother, grandparents, children and grandchildren. Furthermore, men cannot become owners of their maḥārim such as their sisters, aunts or nieces. Kinship through breast feeding is in the same ruling as kinship through genealogy.51. The moment the master of a female slave – an Umm Walad – who has given birth to his child dies, she is theoretically inherited by the free child, however due to the aforementioned principle she practically becomes free without any delay.52
2) Serious Deficiency in a Limb: A slave becoming afflicted with blindness, leprosy, or becoming paralyzed becomes free. If a slave, due to their master, is maltreated or mutilated, they become free.53
3) If a slave converts to Islam in Dār al-Ḥarb and enters into Dār al-Islām before its own non-Muslim master, they are considered free.54
4) Sirāyah: If a master frees their slave partially, the freedom under certain conditions spreads to the whole slave and they become completely free.55
Freedom Through Necessitation
1) Compensation (kaffārah): In order to recompense for certain sin, at times a sinner is required to pay a penalty. There are different types of compensation, such as freeing one slave in the way of God, fasting two months in a row, or feeding sixty poor people. Depending on the severity of the sin, a compensation can be divided into three:
a) Kaffārah Mukhayyarah: where a person has the choice of choosing one of the three options. The compensation for breaking one fast of the month of Ramaḍān intentionally is this.
b) Kaffārah Murattabah: where a person is responsible for freeing a slave in the case that they are unable to fast or unable to feed sixty people. The compensation for unintentional murder is of this kind.
c) Kaffārah Jam’: where it is required for a person to do all three acts collectively. The penalty for killing a believer intentionally is of this type.56
2) Sahm fi al-Riqāb in Zakāt: One of the categories of people who deserve Zakāt are slaves. Mukātib slaves who are unable to pay their dues, or slaves under pressure, rather all slaves, can be bought from their owners and are freed in the way of God with the Zakāt. Slaves that are freed with Zakāt must be Muslims.57
The Zakāt plays a significant role in freeing slaves in an Islamic society. The fact that a portion of the Zakāt is dedicated for slaves indicates God’s desire towards freeing of slaves, such that freeing slave is deemed an act of worship58 and part of the public treasury is reserved for it.
3) Vows, Covenants and Oaths: If someone makes a vow or covenant with God, or takes an oath, guaranteeing they will free a slave in return of a permissible need or act that they are in need of, then it is obligatory upon the person to free the slave, once the conditions of the vow, covenant or oath are met.
Freedom Through Choice
1) ‘Itq (Manumission): Freeing slaves in the way of God is a highly recommended act. It has a lot of reward in the hereafter and has been highly encouraged by God.59 ‘Itq is one of the unilateral legal contracts and is enacted by pronouncing a simple formula: “you are free”. ‘Itq is the easiest way for a slave to be freed and it is only with the decision of the master that it can take place.60
2) Tadbīr: If a master conditions their slave’s freedom to after their own death, then once the master dies, the slave is freed.61 Tadbīr is also from one of the legal unilateral contracts.
3) Mukātabah: Kitāb or Mukātabah is a manumission contract between a master and the slave where a slave, with the permission of their master, works and pays a certain amount to the master in installments until they are freed. Mukātabah Muṭlaqah is when a slave pays the price that was given for the slave in installments, they are freed once all the payments are made. Mukātabah Mashrūṭah is when a slave pays a complete one-time payment of a certain predetermined amount and is freed.62 In the case that a Mukātib slave is unable to pay the all of the cost, the remainder is taken from the Zakāt and is subsequently freed – as long as they were a believer.63
With the conclusion of the first part, mentioning a few points is necessary:
1) None of the causes of slavery are restricted to the past. In the case that the Muslims today are able to gain power, these laws are applicable and can be carried out.
2) Despite the great emphasis on freeing slaves, the causes of freedom are not to the degree that it could abolish slavery completely. Hence with the laws mentioned above, the continuation of slavery is not unnatural.
3) With the great attraction that appears to exist in slavery, such as manpower that comes at a very low cost and the ability to derive all forms of sexual pleasure, the natural tendency of a society in return of these benefits would be towards the continuation of slavery.
In this section, we attempted to present the popular opinion in contemporary Islamic thought regarding slavery without making any judgements.
Part Two: Slavery in Contemporary Islam and Its Relation to Human Rights
Before assessing the rulings of contemporary Islam on slavery it is vital to have a look at what human rights have to say in relation to this discussion. After doing this we would then be able to judge whether the two are compatible with each other or not.
Chapter One: Human Rights as Evidence Against Slavery
The movement to abolish slavery began in the middle of the 19th century. Prior to the Universal Declaration of Human Rights, some of the most important conventions worthy of mentioning that were ratified in the abolishment of slavery were the International Agreement for the Suppression of the White Slave Traffic (ratified in Paris in 1904), the International Convention for the Suppression of the Traffic in Women and Children (ratified in Geneva in 1921) and the Convention to Suppress the Slave Trade and Slavery (ratified in Geneva in 1926).64
In the Universal Declaration of Human Rights, it is stipulated:
Article 1: All human beings are born free and equal in dignity and rights.
Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
In the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (ratified in 1956 in Geneva), freedom was recognised to be the intrinsic right of every person. In light of the acceptance and progress being made in eradicating slavery and the slave trade it appeared that slavery and those customs that were similar to it had not yet vanished from every part of the world. With the purpose of strengthening national and international action against slavery and the slave trade, a number of customs and practices were recognized as being within the jurisdiction of slavery. The 7th article of this Convention says:
“Slavery means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.
What is meant by this would be a person who could potentially find herself in the situation where they would be coerced to this type of practice or custom:
“A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group”.
In the International Covenant on Civil and Political Rights (ratified in 1966), which is one of the most influential International Covenants in relation to Human Rights, it says:
“No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. No one shall be held in servitude. (a) No one shall be required to perform forced or compulsory labour…”
In The Cairo Declaration on Human Rights in Islam (in 1990 Cairo) it also says:
“(a) Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to Allah the Almighty. (b) Colonialism of all types being one of the most evil forms of enslavement is totally prohibited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all States peoples to support the struggle of colonized peoples for the liquidation of all forms of and occupation, and all States and peoples have the right to preserve their independent identity and control over their wealth and natural resources.”
Chapter Two: Laws of Slavery in light of Human Rights
Comparing the laws of slavery in contemporary Islam with the Universal Declaration of Human Rights leaves no doubt whatsoever that the two are diametrically opposed, such that accepting one will lead to rejecting the other.
The most important foundation in the Human Right’s abolishment of slavery is Article 1: “All human beings are born free and equal in dignity and rights”. In comparison we have the following from contemporary Islamic laws:
Firstly: Children whose parents are slaves are born into slavery.
Secondly: People in respect to their rights and identity are not equal. In numerous instances a free man and a slave have differences. In these instances, a slave has far fewer rights. A slave is an existence more debased than a free man but higher than an animal.
A slave does not live his life according to his own wishes, but rather he has to unconditionally obey the wishes and desires of his owner. He can be forced to work yet without the permission of his owner he has no right over his own salary. The slave owner is permitted to punish him without referring the case to a court. The male slave owner is allowed to have sexual relations with the slave girl without her permission or he can place her at the sexual use of another man. Marriage and divorce are in the control of the owner. If the slave is to be killed by a free man, the killer does not have to face retribution. With laws like this, slaves have certainly been deprived from many human rights.
The differences between contemporary Islam and Human Rights can be illustrated in the following table. By studying this table, it is evident that the incompatibility between the laws of mainstream contemporary Islam and Human Rights is something so indisputable that it does not need to be proven. Just because a number of God-fearing and pious slave owners opt not to exercise the rights that they have on their slave does not mean we can ignore what the law allows them to do. When issuing a law, it is vital that all possible scenarios are considered to avoid any chances of exploitation. In every instance the laws of slavery and the obligations of the slave are in contradiction with Human Rights.
|Contemporary Islam||Human Rights|
|If the parents are slaves, the child is also born a slave||Every single person is born free|
|Slaves and free people differ in a number of areas relating to laws, identity and right||All people are equal to one another in terms of rights and identity|
|In seven different ways a free man can be taken as a slave||A person is not allowed to be taken as a slave in any form|
|Until one of the forms of freedom occur, the person shall continue to be a slave||It is not allowed to keep anyone as a slave|
|Trading slaves is permissible within the guidelines of Islamic Law||Trading slaves is absolutely impermissible|
|All the residents in a country at war with an Islamic army, irrespective of being civilian or not, man, women or child, can be taken as slaves and can be distributed amongst the Islamic Government, Military Leaders and soldiers||Prisoners of War are in no circumstances to be taken as slaves and are granted specific rights as protection|
|Only with the permission of the owner can a slave possess something, and any money earned automatically belongs to the owner||The hard work of a person is included within his right of possession, and all money earned belongs completely to them|
|It is not necessary that the slave approves of his lifestyle, occupation or house. The slave is compelled to obey the owner and accept his decision.||Every individual has the freedom to choose their own lifestyle, occupation and house. Nobody has the right to force them in such decisions|
|The owner has the right to take the child from his slave after 7 years and sell him as a slave. The owner has the right to split the marriage of his slave and declare it void. The marriage of someone who was a freeman becomes void after being taken as a slave.||No one has the right to split up another family unit and split a child from his parents or split a wife from her husband.|
|The marriage of the slave is completely at the discretion of the owner. The owner can marry the slave to whomsoever he wishes and he can prevent the slave from marrying someone he/she intends to. The owner can also prevent the slave from marrying completely.||Nobody can compel another person to marry someone against their will. Marriage without the consent of both parties is not valid.|
|An owner has the right to sexual relations with his slave girl regardless of whether she provides consent or not. The owner can provide his slave girl for sexual relations to someone else.||Sexual relations with females without their consent is completely prohibited. No one has the right to put a female at the sexual services of another man.|
|The owner (even if his not a jurist nor someone who is just) has the right to punish the slave within the parameters of Islamic Law.||No body has the right to take the role of a judge or court and punish someone.|
|The punishment of a slave is technically half that of a free man. If a free man kills a slave there is to be retribution, however if a slave kills a free man the slave shall have retribution.||All men are equal in front of the law, and all punishments are to be extracted equally.|
|Without the permission of the owner a slave does not have the right to leisure, relaxation, education, a private life or training.||Every person has the right to leisure, relaxation, education, a private life and training.|
|Without the permission of the owner it is not permissible to partake in communal or social affairs.||Every person has the right to participate in their communal and social affairs.|
Part 3: Contemporary Islam and the Issue of Slavery
Modern Muslims are faced with three definite propositions:
1) Laws regarding slavery are widely discussed in Islamic texts; the Qurān, sunnah, jurisprudential and ethical discourse.
2) These laws are in complete contradiction with the Declaration of Human Rights
3) The human rights movement in the last century firstly, has prohibited slavery in all its forms. Secondly, it has abolished traditional slavery from the globe. The question now is; how should a present-day Muslim deal with the issue of slavery?65
The simplest response is that slavery is nonexistent and therefore we do not need to have a stance in regards to it. In other words, the issue of male and female slaves are outside the scope of applicable or commonly occurring rulings, hence there is no need to spend time on this subject. The majority of Muslim scholars, by remaining quiet or not speaking about the rulings associated with slavery, have tried to pass by the topics and safely leave it behind without mentioning it in a positive or negative way so that they can escape answering the theological problems that may arise.
This method does not solve the problem. It simply delays the need for an answer. Some of the rules regarding slavery are present in the Quran. According to Muslim beliefs, the discussions in the Qurān are for all times and places. Furthermore, many other religious discussions are closely tied to the topic of slavery, for example; compensations, Zakāt, Khumus, retribution, blood money, transactions, marriage, divorce, and war. A jurist can not extrapolate rulings in any of the aforementioned areas without having a definitive stance on slavery. Not being currently applicable or a problem not encountered by people is not reason enough for a topic to be removed.66
In dealing with the issue of slavery, there are two stances amongst contemporary Muslim jurists that can be identified:
- The first stance is the acceptance of slavery, as a religious issue, even in this era.
- The second stance is to completely reject slavery as a religious issue in this era.
In this section, we will first explain and critique the first stance, and then, using evidence from the Qurān and narrations, we will examine the actual issue of slavery, and eventually we will end by presenting and explaining the second view.
Chapter One: A Critical Analysis of the Popular View
Unfortunately, the popular view in Islamic thought that has continued to defend slavery within the framework of religious law has rarely attempted to explain or justify its position. One of the strongest evidence based justifications in this area is found in a small treatise called Kalām Fī al-Riqq wa al-Isti’b’ād’ by Sayyid Muḥammad Ḥossein Ṭabāṭabāī, a great exegete and philosopher.67.
Analysing the Popular Opinion
According to the popular view, slavery as a result of captivity in war is inline with the innate human nature and rational argumentation. This opinion is summarized and presented as such:
- Man’s servitude and bondage to God, in terms of its analytical meaning is abstracted by people after considering the bondage of man to man in human society.
- Man is by nature a subjugator and wishes to make everyone but themselves a servitor for themselves. This subjugation comes as a result of domination, ownership, and with the intention to own the lives and properties of others. In conclusion, the tradition of desiring slaves and people in one’s bondage is rooted in the right to absolute and exclusive ownership that humans consider for themselves.
- The vast majority of people naturally subject to human prehension through domination, ownership, or slavery can be divided to three groups:
a. The transgressing enemy. In most cases the victor deems it permissible to kill, take into captivity or enslave the defeated enemy.
b. The authority and guardianship of the father over their young children, or male family members in relation to female ones.
c. The dominated indebted one in relation to the dominating debtor.
- From the three causes of slavery, Islam has uprooted the authority and domination as causes of slavery. However, it has accepted the first cause, slavery through war, with the consideration of certain conditions; war with disbelievers who have set out to wage war against God, the Prophet and the believers. This is while slavery is not an option in wars between Muslims against other Muslims.
- The reason for taking an unbeliever at war with Islam as a slave is that such a person is not considered a member of human society for them to enjoy social rights and benefits. A person outside of religion, the religious state, a truce contract with the state, and religious protection, is not part of human society. The one who has stripped themselves of respect can be taken captive and into slavery by the army of Islam. The bondage of a person who is at war with religion and refuses to accept the truth at any cost, is in accordance to the judgement of innate nature.
- War with disbelievers begins only when using wisdom, admonishment and a good form of disputation does not lead to any conclusion. Once binding evidence has been established and the disbelievers are not guided, then in this case if they are not under a treaty or protected citizens, those who engage in war are killed except those who submit. Women, children and those of old age are not killed. After the end of the war and the victory of the soldiers of Islam, all the wealth and people that falls under the control of the Muslims are also deemed to be theirs.
- Islam has issued many advices for the slave owners to treat their slaves well, as if they were a member of their household. This is to the extent that in Islam, in reality, there is no difference between a free person or a slave, except that it is necessary for the slave to have the owner’s permission for ownership. It is from the necessities of the Islamic practice that a pious slave is preferred over an evil or sinful free slave owner. Islam has put great emphasis on freeing slaves, which has led to a constant decrease of slavery in Islamic society.
Strategies such as the freeing of a slave as a compensation, the permissibility of adding conditions, and contracts for freeing slaves all lead to the abolishment of slavery.
- The tireless efforts of the non-Muslims in the 19th century to abolish slavery in the world were all related to abolishing bondage through authority and domination. They did not focus at all on slavery as a result of captivity in war – which is what has been accepted by Islam.
- Therefore, firstly, believing that human freedom has no limits is clearly against the legitimate innate nature of human beings. Secondly, the right to take the enemies of the truthful religion and those who wage war with Islamic society as slaves and into bondage is in accordance with the laws of our innate nature. The freedom to act however they want is taken from these individuals, and they are taken into the religious community. They become duty-bound through slavery to be nurtured according to religious etiquettes, until gradually they are freed and join the community of free persons.
- Acts to abolish slavery, like the Brussels Conference Act of 1890, in consideration of the actions of the ruling nations who signed the act at the end of the second world war, was a play of words with the controlled nations and in practice the acceptance of Islam’s approach. In any case, the view that abolishing slavery is the source of equality in rights for all humans, is unacceptable.
- The philosophy behind the slave not enjoying the right to own anything without the permission of the owner is to spoil the plots of the enemy who are at war with the Muslims. Its function is to destroy the economic foundations of the enemy for the destruction of Islamic society. This is done by legislating such rules at the beginning of the period of their subjugation. Those who are deprived of the right to ownership do not have the ability or power to wage war or show opposition.
- Becoming Muslim does not result in the freedom of the slave. If this were not the case, then many slaves could apparently accept Islam and come out of slavery, and then prepare their forces to work against Islam.
- While the children of obstinate disbelievers and their grandchildren who shall be born in later periods, have not participated in wars against Islam, they are slaves due to their fathers. It is a result of their fathers’ sins that they must bear the shackles of slavery on their necks.
- If an Islamic government finds the freeing of slaves to be in the interests of Islamic society, it can find avenues such as purchasing the slaves and freeing them or the like to achieve this goal, with the condition that the solution of the leading authority does not lead to the abrogation or violation of God’s laws.
Critiquing the Popular View
According to this philosopher and exegete of the Qurān, the only legitimate path to attain slaves is taking into captivity non-believers who are in war with Islam. Furthermore, this path is based on the innate nature of man and can be defended. Additionally, Islam’s objective is to provide these slaves with Islamic nurturing and to gradually free them. Lastly, in the event of their being a greater good, the Islamic government can practically free all the slaves from bondage but cannot abrogate a divine law (like that of slavery itself).
Despite the fact that this religious scholar made a great effort to justify this Qurānic law of slavery, and while his presentation is considered one of the strongest defences for the slavery of enemies at war with Islam, there are numerous points of criticism and disputable claims.
- The servitude and bondage of man to God and the bondage of one man to another do not stem from the same place for one to be negated with the negation of the other. In the first instance, the master is an exalted being, worshiped, loved, and the peak and epitome of perfection. This is while as per second example, the master is an equally owned being that is absent of any innate preference, and has only assumed such an ownership through subjugation, force and domination.
- The causes of slavery are not only limited to captivity in war, but rather, there are six other legitimate causes that can be derived from the narrations and statements of the jurists (as discussed in detail within the first section). Not one of these six causes are agreeable to innate human nature, and they can not be justified with the arguments for the first cause.
- Taking in to bondage a captive of war is not in accordance with man’s definite innate nature. There is no logical association between captivity in war and slavery.
- A non-Muslim who is not willing to accept Islam at any cost but is also not at war with Muslims is a member of human society and enjoys the right to life and freedom.
- The captivity of non-military personnel who are far from the battlefront, particularly women, children, and the elderly, is definitely in conflict with sound reasoning and innate human nature.
- There is no doubt regarding the many Islamic advices about treating slaves well, however, these recommended rulings are of little practical value or implication in relation to the extensive rights of the slave owner over the slave, and the numerous binding rules for the slaves (that we covered in part two of section one). These advices will only have an impact on a pious slave owner.
The credibility of a legal system is judged based on its binding laws.
- If taking disbelievers at war with Muslims as slaves is in accordance with an undeniable ruling of man’s innate nature, why is Islam trying to constantly decrease the existence of slaves through various means? In addition, there is no clear evidence to suggest that there is a prevalence of the causes of freedom for slaves over the means to acquire slaves and hence lead to a gradual decrease in slaves.
- The human rights bills and documents, particularly those signed and passed in the twentieth century by the international community, have banned all types of slavery. They did not ban only particular types of slavery, and without a doubt, also banned slavery as a result of war.
- Doubting or rejecting equal rights for humans, especially in regards to freedom and slavery, requires strong and reliable evidence.
- Slavery not ending with a person entering Islam, particularly after the first generation of slaves, is unacceptable and undefendable.
- The bondage of an obstinate disbeliever’s lineage for the sins of their forefathers is not in harmony with innate human nature and reason.
- If it is permissible to free every slave with a governmental order with the excuse that it is temporarily in the best interests to free them, if we reached the conclusion that taking slaves is against justice and the practice of reasonable people,68 and there is a continuous benefit in abandoning it, then why can we not rule for its abrogation? More so, because it is uncovered that the ruling of slavery was supposed to be temporary from the beginning and not permanent; it was from the changing and seasonal laws of Islam, not from the unchanging and permanent rules of divine law.
Regardless, reason and human nature do not approve any one of the causes for slavery, including through war. As a result, none of the rulings attributed to slavery and bondage are in line with innate nature and reason. Yes, reason and innate human nature welcome all the means to end slavery.
Chapter Two: Analysis of Religious References to Slavery
We will analyze the religious evidence for slavery under two discussions: the Qurān and the traditions.
The Problem of Slavery in the Qurān
Which of the seven causes of slavery have been approved of by the Holy Qurān? Does taking war captives as slaves have any evidence in the Qurān? Which of the rules and responsibilities of slaves has been mentioned in the Qurān? What is the Qurānic stance regarding the means of ending slavery? Does the Qurān approve of the division of humans into free and slave? Does the ending of bondage and the absolute rejection of slavery contradict the teachings of the Qurān?
Any discussion regarding slavery in Islam is incomplete and fruitless without studying the Qurānic opinion. The questions above are an example of the questions faced by contemporary Muslims and these questions demand answers. The Qurānic stance in regard to slavery can be explained in the manner below:
1. The Holy Qurān has not approved of any of the causes of slavery. Principally, the Qurān has not mentioned anything about the causes or root cause of slavery, neither in an affirmative nor in a negative way. As such, none of the seven causes of slavery have a Qurānic origin. In fact, the Qurān has not even discussed slavery through captivity in war, let alone approved of it.
The most important verse in relation to captives of war is:
[47:4] When you meet the faithless in battle, strike their necks. When you have thoroughly decimated them, bind the captives firmly. Thereafter either oblige them [by setting them free] or take ransom till the war lays down its burdens. That [is Allah’s ordinance], and had Allah wished He could have taken vengeance on them, but that He may test some of you by means of others. As for those who were slain in the way of Allah, He will not let their works go awry.
In this verse, two solutions have been presented regarding captives of war: freedom without ransom, and freedom with ransom, such as exchanging them for Muslim captives, taking reparations, etc. However, a third solution by the name of slavery has neither come in the content of this verse, nor is it deducible from it, rather, taking captives as slaves is not provable through the Holy Qurān. Yes, this ruling is derived from the Sunnah and the traditions, which will be discussed later.69
2. The freeing of slaves or means of ending bondage have been given attention and are discussed in the Qurā The Qurān has officially recognized four mechanisms for ending bondage, two of which are optional and two that are obligatory. These four means of freeing slave can be explained as such:
a) Encouraging the freeing of slaves: [90:12] And what will show you what is the uphill task?, [It is] the freeing of a slave.
b) Encouraging emancipation deals (mukātabah): [24:33] As for those who seek an emancipation deal from among your slaves, make such a deal with them if you know any good in them, and give them out of the wealth of Allah which He has given you.
c) Freeing slaves as a form of religious taxation (Zakāt): [2:177] Charities are only for the poor and the needy, and those employed to collect them, and those whose hearts are to be reconciled, and for [the freedom of] the slaves and the debtors, and in the way of Allah, and for the traveller. [This is] an ordinance from Allah, and Allah is all-knowing, all-wise.
According to the Quranic viewpoint, one of the qualities of the virtuous is that they invest in freeing slaves.
d) The freeing of slaves as a penalty: The Qurān has made the freeing of slaves a penalty for three sins:
One: Accidental killing: [4:92] Anyone who kills a believer by mistake should set free a believing slave.’
Two: The atonement for not fulfilling an oath (see 5:89).
Three: The penalty for Ẓihār (see 58:3).
3. The rulings regarding slaves in the Qurān: the noble Qurān points out ten rulings relevant to slavery:
a) Necessity of good conduct with slaves: [4:36] Worship Allah and do not ascribe any partners to Him, and be good to parents, the relatives, the orphans, the needy, the near neighbour and the distant neighbour, the companion at your side, the traveller, and your slaves.
b) The encouraging of free believers to marry righteous and believing slaves with the permission of their owners:
[2:221] Do not marry idolatresses until they embrace faith. A faithful slave girl is better than an idolatress, though she should impress you. And do not marry [your daughters] to idolaters until they embrace faith. A faithful slave is better than an idolater, though he should impress you.
[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.
Generally speaking, the Qurān has repeatedly encouraged young people and single individuals, whether free or slaves, to marry: [24:32] Marry off those who are single among you and the upright among your male slaves and your female slaves. If they are poor, Allah will enrich them out of His grace, and Allah is all-bounteous, all-knowing.
c) The prohibition of forcing a female slave into obscenity: [24:33] Do not compel your female slaves to prostitution when they desire to be chaste, seeking the transitory wares of the life of this world. Should anyone compel them, then after their compulsion Allah is indeed all-forgiving, all-merciful.
d) The punishment for obscenity in female slaves is half that of free females: [4:25] But on marrying, should they commit an indecent act, then there shall be for them [only] half the punishment for free women.’
e) In retribution, it is necessary to observe equality between the free and slaves: [2:178] O you who have faith! Retribution is prescribed for you regarding the slain: freeman for freeman, slave for slave.
f) The female slaves of Muslim women are considered mahram to them, and it is not necessary for Muslim women to observe the legal hijab in front of them (see 24:31). In addition, it seems that the addressees of the (command for) legal hijab are free believing women (see 33:59).
g) It is necessary for female slaves to seek the permission of their married masters before entering their sleeping quarters at three particular times (see 24:58).
h) Taking sexual pleasure from female slaves, as one would from a spouse, is similarly permissible: [4:3] But if you fear that you may not treat them fairly, then [marry only] one, or [marry from among] your slave-women. [23:5-7 & 70:29-31] Who guard their private parts, (except from their spouses or their slave women, for then they are not blameworthy; but whoever seeks [anything] beyond that —it is they who are transgressors).70
i) The permissibility of taking pleasure from a married female slave after the process of istibrā: [4:24] and married women excluding your slave-women.
This verse and the previous verses introduce the fourteen categories of women with whom sexual relations are absolutely prohibited (albeit through marriage or slave ownership). The fourteenth category is a married woman.
‘Based on this, the statement ‘excluding your slave-women’ negates the prohibition of (sexually) approaching married slave-women. According to what has been mentioned in the Sunnah, the master of a married female slave circulates his slave between (himself and) her husband, he acquires her through istibrā and then returns her to her husband.’71
It appears that the epitome of ownership and the utmost depth of being owned is observable in this verse.
j) Slaves are unable to be owners. The noble Qurān, as an example, has pointed out the inability of a slave to be an owner (of anything): [16:75] Allah draws a parable: a chattel who has no power over anything, and one whom We have provided a goodly provision and who spends out of it secretly and openly. Are they equal? All praise belongs to Allah. But most of them do not know.72
Rigorously examining the ten rules related to slaves in the Quran leads us to two points:
One: The owners’ usage of different dimensions of the slave is not unconditional, and is, in fact, restricted to the rules laid out by Islamic law.
Two: The religiously defined confines of a master using the various dimensions of a slave are very far-reaching.
4. Now, after a complete investigation of the verses of Qurān related to slavery, and examining them under the three centralized categories of causes of slavery, means of freeing slaves, and the rules applicable to slavery, the following conclusions are noteworthy:
One: Islam, generally speaking, has approved of slavery, and has accepted that humans be classified as free and slaves, and that slaves have less rights than the free in many cases.
Two: The discussion of how someone becomes a slave has not been spoken about in the Qurān at all. Meaning, the Qurān has remained silent about the manner in which a person becomes a slave, and furthermore, has not put any emphasis on preserving the system of slavery, and has not encouraged the taking of slaves in any of its verses. On the other hand, the Qurān has strongly promoted and encouraged the freeing of slaves and has included it among the acts of worship.
Three: The collective verses of the Qurān related to slavery are in a sense the Qurān dealing with the external reality of slavery. Propositions pointing towards external reality are bound by time and temporal reality. It is not possible to establish or extrapolate propositions that are ḥaqīqī from propositions that are khārijī.73 I will return to this important point later. That which is of utmost important in the discussion of slavery in the Qurān is the universal spirit of Islamic teachings and the Qurān’s views on the reality of humans, which has been neglected, and to which I will point towards at the end of the article.
The Issue of Slavery in the Traditions
The three aspects that were looked at before in part one, the causes of enslavement, the freeing of slaves and the responsibilities of slaves, all have their basis in traditions. Even though the number of the traditions do not match those in respect to worship, if we were to understand them through the popular framework (of analyzing traditions), there are a number of reliable traditions whose strong chain of narrators can provide certainty that these traditions were in fact said by the Prophet (p) and the Imāms (a). Additionally, the traditions to support what we have spoken of are not limited to a few.
There isn’t space to focus on every single tradition in respect to slavery however we will mention the most important ones that specifically support our discussions on the three aspects of slavery mentioned, especially the causes of slavery.
First: Getting captured in war. The reliable tradition from Talḥa b. Zayd from al-Imām al-Ṣādiq (a):
اذا وضعت الحرب اوزارها واثخن اهلها فكل اسير اخذ علي تلك الحال فكان في ايديهم فالامام فيه بالخيار ان شاء من عليهم فارسلهم، و ان شاء فاداهم انفسهم و ان شاء استعبدهم فصاروا عبيدا
“When the war has subsided and the people have been defeated, capture all those whom your hands can reach in that situation, and the Imām is to have discretion over them. If he so wishes he will be favourable and free them, or if he wishes he will take monetary compensation for them, or if he wishes he will take them as slaves.”
Freedom without anything in return or in return of prisoners has a Qurānic reference (Muḥammad:4), however taking prisoners as slaves is dependant on this tradition and its likes.
Second: Permissibility in capturing civilians outside of war. The reliable tradition from Rafā’ah the slave seller from Imam Sādiq:
قلت له إن الروم يغيرون على الصقالبة فيسرقون اولادهم من الجواري و الغلمان فيعمدون الي الغلمان فيخصونهم ثم يبعثون الي بغداد الي التجار، فماتري في شرائهم و نحن نعلم انهم مسروقون انما اغار عليهم من غير حرب كانت بينهم؟ فقال: لابأس بشرائهم، انما اخرجوهم من دار الشرك الي دارالاسلام
“The Romans have raided the Slavs and are abducting their children – both girls and boys – they then castrate them, christen them then send them to Baghdad (as slaves) to be traded. What is your view on its permissibility while knowing they were abducted outside of any war (taking place) between them. The Imam replied: There is no issue, for indeed they have been taken from polytheism to Dār al-Islām.” 74
Third: Enslavement by purchasing from one’s guardian. ‘Abdallah Lahhām asked Imām Sadiq about the permissibility of a person who purchases the daughter of a wife from a polytheist, to which the Imām replied there is no problem.75
Fourth: Enslavement through confession and the principle of freedom. Imam Alī (a) says:
الناس كلهم احرار الا من اقر علي نفسه بالعبوديه و هو مدرك من عبد او امه و من شهد عليه بالرق صغيراً كان او كبيراً
“Mankind is all free except for the one who confesses against himself to be a slave, and they are bāligh irrespective of whether they are a male slave or a female slave, or if one testifies against them to be a slave, regardless (if the one testifying) is old or young.”76
Fifth: Marriage and the impermissibility of a slave using his own money without the permission of the slave-master. The tradition of ‘Abdallah b. Sinān from Imam Sādiq:
لايجوز للعبد تحرير و لاتزويج و لا اعطاء من ماله الا باذن مولاه
“It is not permissible for a slave to be freed, marry or to use his own money except with the permission of his master.” 77
Sixth: Transfer of slavery from the parents to the children. The child of a free father and a slave mother is free. What is meant by this is if both parents are not free than the child will also not be free.78
Seventh: Permissibility in giving a slave girl to someone else for sexual purposes. Ḥadīth of Fuḍayl b. Sayyār from Imām Sādiq (a):
اذا احل الرجل لاخيه جاريته فهي له حلال
“If a person grants his slave girl to his brother [in faith for sexual purposes], the slave girl is permissible for him.”79
Eight: The slave master and the slave girl who has a husband. The tradition of Mūhammad b. Muslim from Imām Bāqir (a):
سألت أبا جعفر (عليه السلام) عن قول الله عز وجل: (المحصنات من النساء إلا ما ملكت أيمانكم). قال: هو أن يأمر الرجل عبده وتحته أمته فيقول له: اعتزل امرأتك ولا تقربها ثم يحبسها عنه حتى تحيض ثم يمسها . فإذا حاضت بعد مسه إياها ردها عليه بغير نكاح
I asked Abā Ja’far (a) regarding the verse [4:24] And [also prohibited to you are all] married women except those your right hands possess. He (a) replied: “That is when a male master orders his slave whose wife is also a slave of the same matter that, remain away from your wife and do not approach her. Then he takes her from him until she menstruates, then he can engage in sexual intercourse with her. Once she menstruates after sexual intercourse he can return her to her husband without the need of a Nikāḥ.”80
Ninth: Divorce is in the hands of the master and not the slave. Abū Ṣālih Kinānī narrates from Imam Sādiq:
اذا كان العبد و امرأته لرجل واحد، فان المولي يأخذها اذا شاء واذا شاءردها
When both the slave and the slave girl [who are married to each other] belong to the same master, if the master wishes he can preserve the marriage or [if he wishes] he can nullify it.81
Tenth: Permissibility for slave girls not to cover their head. From Muḥammad b. Muslim who narrates from Imām Bāqir on whether a slave girl needs to cover her head in prayer:
ليس على الأمة قناع في الصلاة
There is no requirement for head covering for a slave girl in prayers.82
Ḥammād Laḥḥām narrates from Imām Sādiq:
سألت أبا عبدالله عليهالسلام عن المملوكة ، تقنّع رأسها في الصلاة؟ قال : لا ، قد كان أبي إذا رأى الخادم تصلّي وهي مقنعة ضربها ، لتعرف الحرّة من المملوكة
“I asked Imām Sādiq on whether a slave girl should cover her head in prayer. The Imām said: “No. Whenever my father would see a slave girl covering her head in prayer he would hit her, so that the free would be known from the slave girl.”83
Eleventh: Encouragement for freeing slaves. Zurārah narrates from Imām Sādiq:
من اعتق مسلماً اعتق الله العزيز الجبار بكل عضو منه عضواً من النار
“Whoever frees a Muslim slave, for every part of the freed slave, Allah the Most Powerful, the Compeller, shall free a part of the freer from the fire.”84
Twelfth: Requirement of treating slaves humanely. Abū Dharr narrates from the Prophet (p) about slaves:
اخوانكم جعلهم الله تحت ايديكم، فمن كان اخوه تحت يده فليطعمه مما يأكل و ليلسه مما يلبس و لا يكفه ما يغلبه فان كلفه ما يغلبه فليعنه
“They are your brothers whom Allah has placed under your authority, so whoever has one of his brothers under his authority should feed from what he eats and should clothe him with what he clothes himself. And do not task him with what he cannot bear, and if he cannot bear with such, help him with it.” 85
Thirteenth: Abomination of selling slaves. Tradition narrated by Ishāq b. Umār from Imām Sādiq who narrates from the Prophet (p):
شر الناس من باع الناس
“The worst of people are those that sell people.”86
Selling slaves is considered from amongst the detestable (makrῡh) occupations.
After looking at those traditions, a few conclusions can be derived:
One: The causes of enslavement, the ways in which a slave can be freed and the laws that a slave is to abide by were rulings approved of and supported by the Prophet (p) and the Imāms (a) in their own times.87
Two: That which is approved of by the guardians of religion (i.e. a Prophet or an Imām) is whatever is compatible with the norms and conventions of the time. The parameters of such discussion were (in that time) widely accepted.
Third: The encouragement for people to free slaves is evident to see.
Fourth: The traditions on slavery in comparison to other jurisprudential discussions are very few. The traditions which speak of the laws pertaining to slaves are a mere handful.
Five: In none of the traditions related to slavery is there an indication that slavery was a permanently immutable law.
Chapter Three: The Illegitimacy of Slavery in Contemporary Islam
The second view considers slavery and bondage to be illegitimate and prohibited practice in this era. It is absolutely impossible to own humans, let alone buy, sell or use them per one’s will. No single belief or adherence to a sect legitimizes the enslavement of proponents and followers of those beliefs. Similarly, there is no act that can be punishable by consequentially making the perpetrator a slave. Man has been created free and no one holds the right to make him or her a slave or an item of possession. Freedom from slavery and its illegitimacy are among the essential rights of human beings in and of them being human beings, and this right can not be removed under any circumstances. Even the human being does not have the right to strip themselves of this right. Slavery is a crime and all persons who try and enslave others, in any form, are criminals.
The aforementioned opinion is contingent upon accepting the following twelve points:
One: Slavery and slave trading was a common and popular practice across the entire world just a few hundred years ago. Categorizing people into either freemen or slaves was widely accepted. The reasonable people in society didn’t consider bondage or slavery to be something detestable or abhorred. Neither did they consider it to be unjust or unfair. At that time, slavery included people who were downtrodden and oppressed. Capturing prisoners of war was considered a form of punishment and was often done in retaliation and reprisal. The practice of bondage and slave trading at that time was part of the entrenched and established practices of society.
Two: Islam appeared within a temporal context where bondage and slavery were long established and fixed, to the extent that removing and uprooting it, if not impossible, was an extremely difficult task. In that situation Islam moderated slavery and litigated boundaries for it. From one angle it severely limited the ways in which slaves could be taken and on the other it encouraged people to free slaves. It expanded the ways slaves could be freed and set about establishing a set of minimum rights for the slave to ensure the owner did not have the right to act contrary to that. It also encouraged the slave owners to behave with the slaves out of compassion and humanity. The laws in relation to slavery are all approved laws, not institutional, and slavery was not considered to be an essential and necessary part of faith, neither was it considered to be a fundamental of the creed nor a particular of it. However, it was a particular of jurisprudence. It was neither a scripture-bound or submissive law. The law of slavery is declaratory (al-ḥukm al-waḍ’ī) and at times an injunctive ruling (al-ḥukm al-taklīfī) that becomes obligated through it.88 The laws of slavery are taken from the laws of transactions which in turn is dependent upon the norms and customs of society. From the time of revelation till a thousand years after, these laws were considered compatible with the norm, and they were considered just and rational.
Three: All teachings and principles of Islam, being a religion of one’s innate nature during the time of revelation, be it the principles of faith, belief, ethics or jurisprudence, were just and in accordance with the practice of reasonable people of the time. It was for this very reason that people from all walks of life welcomed it. The two conditions, namely just and being reasonable are not restricted to the time of revelation, rather they are conditions for the continuity of religion. Meaning, in different spatio-temporal contexts, religious law must continue to remain just and reasonable. Given that these two are from the necessary qualities of religious law, their absence in any law indicates their illegitimacy. Every law that in one of the contexts is unjust and unreasonable to the degree of certainty (and not speculative, estimation, guesswork, or conjecture) is not legitimate in that scenario.89
Four: Justice and reason are not religious values or subordinate to religion, rather they are prior to religion and fall in line of the causes of religious law.90 It is religion that must be just and reasonable, not that justice and reason be religious. The crux of the debates between the ‘Adliyyah (Mu’tazilah and Imāmīyyah) with the Ashā’irah results in these conclusions. Humans with their dependency on their own pure innate nature choose a religion which is just and reasonable.
Five: Human understanding, especially the customs of the scholars, throughout time was not fixated nor the same in relation to what is just and reasonable, and in general has changed and progressed. The principles of what constitutes justice and reasonable have become more precise and in depth. Humans do not consider many instances, especially within the customs of the reasonable people to be just today, even though in the past they considered them to be just and fair. The practice of reasonable people today does not accept certain things that were considered correct and necessary in the past. Human understanding has developed, perhaps it had remained heedless of certain things in the past and today based on previous experiences critiques itself. This however does not mean that all of human understanding and the humanities are different and have changed completely. What came was an a posteriori, not a priori, and a particular affirmative (al-mūjibah al-juz’īyyah) not a universal.91
Six: Islam, as the final religion, must not only uncover solutions, suggest alternatives, and present rulings which are for all periods and the entire world, but it also must not shy away from solving issues of present day and age, or remain silent about them. As such, it is only natural that among the corpus of Islamic rulings, there be rulings that are seasonal, temporary and particular to time and place. It is clear that this does not mean that all religious rulings must be of this type. Distinguishing between the fixed or permanent rulings and seasonal or temporary rulings is the principle duty of expert jurists and specialist researchers. In all instances that an insightful jurist reaches certainty that a ruling from the religious legal code is no longer just or reasonable, the said jurist uncovers that such a ruling was from the temporary and seasonal rulings, and its validity has ended and makes it henceforth void of any legitimacy. This does not imply technical abrogation of rulings (as understood in the jurisprudential context), because legislating and abrogating religious law is only in the hands of God and the Prophet, and others, including jurists, cannot make an established permissible rule of God impermissible, or an established impermissible rule of God permissible. However, uncovering the period and expiration for a temporary religious ruling’s validity is among the responsibilities of jurists. To add, temporary and seasonal religious rulings are not limited to governmental orders or commands of a statesman by the Prophet (s) and Imams (a).
Seven: In order to observe the utmost precaution in relation to protecting the permanent divine laws, the primary assumption is the permanence and constancy of religious rulings, and evidence must be presented to establish that a religious ruling is temporary or seasonal and particular to a time and place. If no credible evidence is presented to illustrate that a ruling is temporary, it will continue to be judged as a permanent ruling. Among the most important arguments and proofs for a ruling being temporary, seasonal or limited to a particular time and place is arriving with certainty at the conclusion that the said ruling is unjust and unreasonable in another period.92
Eight: It is not such that human reason is incapable of completely understanding the benefits and harms of religious laws in the discussion of transactions, especially it’s rulings that predate Islam and were approved of. This is not to claim that it is possible to completely understand the benefits and harms of all religious rulings, rather a point regarding a general understanding in the aforementioned area (transactions). In other words, the same way in which Usūlī scholars have practically dealt with the Akhbārī and Ahl al-Ḥadīth scholars.
Nine: The discussion on slavery and the slave trade is one of the most clear-cut examples of where over the past hundred years the public opinion has completely changed. If there was a time when the greatest of philosophers such as Aristotle and Plato would defend such practices, then today the reasonable people have completely refuted this and consider it to be oppressive and unfair. In today’s age the norms of the reasonable people have absolutely rejected slavery and consider it in contradiction to human rights. The path of the reasonable people today considers slavery repulsive and detestable, and they understand it to be a form of transgression against another human beings’ rights. Their norms recognize that the value of a person is greater than the creed he subscribes to and accepts that a person has an absolute minimum set of rights irrespective of his religion, ethnicity, gender, skin colour or social standing. This minimum set of human rights is that freedom of a person is an immutable right and it is not possible for them to be considered a possession of another person. The deprivation of freedom from a criminal due to his breaking of the law, be it permanently or temporarily, in no way permits their slavery or bondage.
Ten: By the diminishing of the way of the reasonable people, which was the basis of Islam’s approved laws on slavery, it is therefore only natural to understand these laws as temporary. These temporary laws whose era has passed and which in these times are considered to be invalid and lacking legitimacy, in other words, slavery, bondage and slave trading, are thus to be considered within this context as illegitimate and forbidden. Slavery being forbidden and lacking legitimacy today does not question the validity of the previous ruling of slavery being permissible. That is because it is possible that one subject-matter has two different rulings at different times. At the time when slavery was approved by the reasonable people it was ratified by God, however in our times where the reasonable people consider it to be detested and oppressive, it is forbidden and illegitimate. We have no evidence to demonstrate that the laws of slavery were an immutable and fixed approval. All laws founded upon approval are contingent upon that law’s continued justice and its acceptability amongst the reasonable people of society. In all honesty, if the purpose of this illuminated Sharī’ah with regards to slavery was that it be gradually eradicated, then today when the global conditions are appropriate enough to eradicate the roots of slavery, why are we hesitant in doing away with it so that the ultimate purpose of the Prophet of mercy is realized?
Eleven: By taking a look at the spirit of Islam and the lofty goals of the law, it appears that it is compatible with the abolition of slavery and slave trading. Slavery was amongst the incidental laws which being abolished would not damage the law neither would it damage the religion. On the contrary this refinement would illuminate religiosity. In Islamic anthropology, man is considered the vicegerent of God on the earth (see 2:30 and 6:125). Man possesses the greatest capacity for knowledge (see 2:31-33). Man is the trustee of God (see 33:72).
[17:70] Verily we have honoured the Children of Adam. We carry them on the land and the sea, and have made provision of good things for them, and have preferred them above many of those whom We created with a marked preferment.
[4:1] Mankind has been created from the same soul.
In Islam superiority is based on piety and not on wealth, ownership or authority.
[49:13] O mankind! Lo! We have created you male and female, and have made you nations and tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware.
Felicity in the next world is dependant upon faith and righteous actions, and being free or a slave has no relevance.
[18:30] Lo! as for those who believe and do good works – Lo! We suffer not the reward of one whose work is goodly to be lost.”
The Prophet has said: “There is no superiority of an Arab over a non-Arab, neither in the White over the Black, except in piety”. In the view of the Prophet, people are equal to one another like bristles in a comb. Imam ‘Alī has said similarly: “Do not be a slave to another person when God has made you free”. (Nahj al-Balāgha, letter 31, page 400).
The complete abolition of slavery is completely in sync with the objectives of the Prophet (see 7:157). In reality, what “fetters and burdens” could possibly be greater than slavery?
Twelve: Perhaps it might occur that since this issue is mentioned in the Qurān it therefore must be an immutable and unchangeable law. Firstly, the Qur’ān has matters that are abrogating and abrogated and mentioning abrogated matters in the Book is not detestable and it is considered acceptable. Secondly, recounting historical matters such as the nations of the early Prophets or from the life of the final Prophet is common, and its relevance is not limited to the context being referred to. Taking admonition from these stories is not limited to time. Thirdly, not a single mention is made in the Qurān to the way a person can be taken into slavery. Fourthly, slavery being detestable and unjust is a definite indicator to its impermissibility and illegitimacy in this era and not in the previous one. The laws of slavery were valid within that time context, and outside of it they aren’t. Abandoning the important rebuttal-presumption of freedom can only be done with reliable evidence, and temporal laws do not have the capacity to be excluded from this principle outside of their own specific contexts.
- See: https://yaqeeninstitute.org/en/youssef-chouhoud/modern-pathways-to-doubt-in-islam/
- 2nd September, 2018 – Facebook post.
- Translator’s Note (TN): Any mention of the word ‘legal’ in this paper is a translation of the word ‘Shar’ī’, meaning it is approved, established and legitimate according to the opinions of the jurists.
- TN: In Shī’ī jurisprudence, generally speaking, a legal offensive war can only be initiated with the approval of the Prophet (p) or an infallible Imām (a) – though differences of opinion amongst jurists do exist on this issue.
- TN: This is a reference to one of the chapters in Islamic jurisprudence that deals with slaves and their emancipation. Generally, it is either not studied at all by students in Shī’ī seminaries today, or it may be touched upon briefly.
- Miṣbāḥ Yazdī, 1372 SH.
- TN: This is a quote by Āyatullah Miṣbāḥ Yazdī published in Rūz-Nāmeh Iṭelā’āt, 10th of Mehr, 1372 SH. Āyatullah Miṣbāḥ is one of Iran’s greatest contemporary philosophers and a proponent of Transcendent Theosophy. The philosophical school of Transcendent Theosophy can be traced back to Mullā Ṣadrā (d. 1640) and is the dominant school of philosophy studied today in Shī’ī seminaries, especially in Qom. This quote is in context of his critique on the foundations and premises of the Universal Declaration of Human Rights. Most contemporary Muslim philosophers from this school of thought have significant epistemic grievances with this human rights declaration and many works critiquing it have been published in the Persian language since the Islamic Revolution in 1979. See for example Āyatullah Miṣbāḥ’s Naqd wa Barrasī I’lāmīyeh Jahānī Ḥuqūq-e Bashar.
- As an example, al-Riqq fi al-Islām of Aḥmad Shafīq and Athār al-Ḥarb fī Fiqh al-Islāmī of Wahbah al-Zuhayli.
- TN: It appears Kadivar is referring to the Iranian society which is predominantly Shī’ī.
- TN: All these words roughly convey the meaning of ‘slave’.
- TN: Roughly translates to ‘free man’, ‘free woman’ or ‘free’ respectively.
- TN: The actual word used in the article is aṣl. In Shī’ī legal theory and jurisprudence, an aṣl is any principle of legal presumption that exists in the absence of evidence otherwise and when there is doubt with respects to a law in any given scenario. In this context, the presumption ‘all humans are free’ is rebuttable because it can be proven otherwise with evidence that is legally binding, such as the testimony of two trustworthy individuals.
- Miftāḥ al-Kirāmah, vol. 6, pg. 117; Jawāhir al-Kalām, vol. 24, pg. 136; Tashīl al-Masālik, pg. 7)
- TN: There are a number of traditions to back this up:
قَالَ أَبُو عَبْدِاللَّهِ (ع) قَطَائِعُ الْمُلُوكِ كُلُّهَا لِلْإِمَامِ وَ لَيْسَ لِلنَّاسِ فِيهَا شَيْءٌ
Al-Imām al-Ṣādiq (a): The fiefs of the kings are all for the Imām, nothing in it is for the people. [Wasāil al-Shī’a, vol. 9, pg. 527]
In another tradition:
Al-Imām al-Ṣādiq (a): We are a people to whom obedience has been made obligatory by Allah, the Most Holy, the Most High. The spoils of war are for us and we have been given the authority to choose the best out of the property seized from the enemy. We are the people very firmly established in knowledge. We are the ‘certain people’ who are considered as subject of envy and the jealousy of people in the following verse of the Qurān: [4:54] Are they jealous of the favors that Allah has done for certain people? [Al-Kāfī, vol. 1, pg. 186]
- TN: A disbeliever who belongs to another state with whom the Muslims have a treaty with and is able to live in Muslim land due to this treaty.
- TN: A disbeliever who happens to be on Muslim land only temporarily and is protected without having to pay the jizya. Such individuals could be merchants, emissaries, students or even people simply wanting to cross over land into another region.
- Minhāj al-Ṣāliḥīn, vol. 1, pg. 373, 379, 380; Jawāhir al-Kalām, vol. 21, pg. 120-128
- Al-‘Urwah al-Wuthqa, vol. 4, pg. 233; Taḥrīr al-Wasīlah, vol. 1, pg. 370; Mustanad fī Sharḥ al-‘Urwah al-Wuthqa, Kitāb al-Khumus, vol. 25, pg. 16
- Al-Mīzān fī Tafsīr al-Qurān, vol. 6, pg. 345
- Sharā’i al-Islām, vol. 2, pg. 315; Jawāhir al-Kalām, vol. 24, pg. 229; al-Mustanaf fī Sharḥ al-‘Urwah al-Wuthqa, vol. 25, pg. 19; Minhāj al-Ṣāliḥīn, vol. 2; pg. 66
- Minhāj al-Ṣāliḥīn, vol. 1, pg. 374
- Jawāhir al-Kalām, vol. 30, pg. 287
- Jawāhir al-Kalām, vol. 24, pg. 136; Minhāj al-Ṣāliḥīn, vol. 2, pg. 66 and 313
- Jawāhir al-Kalām, vol. 24, pg. 150; Minhāj al-Ṣāliḥīn, vol. 3, pg. 67, 313
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 136
- Regarding slavery in other societies, see Aḥmad Shafīq’s work, al-Riqq fi al-Islām, pg. 9-27. Regarding slavery in the Arab Jāhiliyyah period, see Jawād ‘Alī’s work, Tārīkh al-‘Arab Qabl al-Islām. Regarding slavery in the Torah, see al-‘Ahd al-Qadīm: al-Iṣbāḥ al-‘Ishrūn min Tathniyyah al-Ishtirā’. Regarding slavery in Christianity, see al-‘Ahd al-Jadīd: al-Aṣḥāḥ al-Sādis min Risālah Būlus Ila Ahl Afsus.
- As an example, see Māwardī, pg. 126-141 and Ibn Qudāmah, vol. 10, pg. 522.
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 288
- Nahj al-Balāgha, Ḥikmah #165
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 70, #306
- Ibid, pg. 67, #288
- Akhlāq Nāṣirī, pg. 240-244
- Jawāhir al-Kalām, vol. 24, pg. 170-186; Minhāj al-Ṣālīḥīn, vol. 2, pg. 69
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 275
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 275; al-‘Urwah al-Wuthqa, vol. 2, pg. 803
- al-‘Urwah al-Wuthqa, vol. 2, pg. 804
- al-‘Urwah al-Wuthqa, vol. 2, pg. 841
- Jawāhir al-Kalām, vol. 30, pg. 307; al-‘Urwah al-Wuthqa, vol. 2, pg. 848; Minhāj al-Ṣāliḥīn, vol. 2, pg. 277
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 277
- Istibrā in this context refers to the number of days an unmarried female slave has to abstain from sexual intercourse whenever she changes owners, before her new owner or can engage in sexual intercourse with her. The concept is similar to the waiting period (‘iddah) a married woman has to go through after a divorce or after becoming a widow, however the length of istibrā is shorter than an ‘iddah.
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 67
- al-‘Urwah al-Wuthqa, vol. 2, pg. 848
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 298
- al-‘Urwah al-Wuthqa, vol. 1, pg. 551; Taḥrīr al-Wasīlah, vol. 1, pg. 142; Minhāj al-Ṣāliḥīn, vol. 1, pg. 136
- Jawāhir al-Kalām, vol. 21, pg. 387
- Takmilah Minhāj al-Ṣāliḥīn, pg. 55
- TN: In works of jurisprudence a detailed definition is given for who is considered a muḥṣin or a muḥṣinah, but for this paper it suffices to know that it is an individual who has a spouse with whom they can fulfil their sexual desires.
- Takmilah Minhāj al-Ṣāliḥīn, pg. 36
- Takmilah Minhāj al-Ṣāliḥīn, pg. 68
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 374
- Minhāj al-Ṣālīḥīn, vol. 2, pg. 67 and 313
- Ibid, vol. 2, pg. 276
- Jawāhir al-Kalām, vol. 34, pg. 189, 191
- Ibid, vol. 34, pg. 190
- Ibid, vol. 34, pg. 152
- Taḥrīr al-Wasīlah, vol. 2, pg. 125; Minhāj al-Ṣāliḥīn, vol. 2, pg. 321
- Taḥrīr al-Wasīlah, vol. 1, pg. 337, 339; Kitāb al-Zakāt, vol. 3, pg. 33
- TN: Zakāt is from the acts of worship, hence it requires an intention of seeking proximity to Allah for its validation. Although some contemporary scholars have questioned this.
- Jawāhir al-Kalām, vol. 34, pg. 87
- Minhāj al-Ṣāliḥīn, vol. 2, pg. 313
- Ibid, vol. 2, pg. 314
- Ibid, vol. 2, pg. 315
- Taḥrīr al-Wasīlah, vol. 1, pg. 337
- TN: Kadivar quotes the Convention to be ratified in Geneva in 1962, however none could be found for this date and it appears a typo was made between 62 and 26.
- It is appropriate that we cite an example of some recent Muslim scholars who addressed the challenge of slavery in Islam. Mīrzā Abū al-Ḥasan Sha’rānī (d. 1352 SH) writes:
“Slavery is permissible in Islamic law, however it is restricted to a legal war against the disbelievers when they are taken as prisoners. In this day and age when the Imām is absent, the subject-matter of slavery is completely diminished, because a legal war must take place in the presence of an Imām. Furthermore, the Universal Declaration of Human Rights has made it that all humans remain in a truce with one another so that there is no war leading to the necessity of defense.” Nathr Ṭūba, pg. 186
- TN: Interesting that in this regards, Kadivar’s opinion is the same as Āyatullah Miṣbāh’s, who also claimed that the book of laws discussing slavery should not be removed
- Al-Mizān fī Tafsīr al-Qurān, v.6, p. 338-357
- TN: The phrase ‘practice of reasonable people’ (sīrah al-‘uqalā) will be used multiple times in this paper. The term ‘reasonable people’ is a reference to the common person of any given society, no matter where they live and what time period they lived in. Though resort to the practice of reasonable people as a source of law has always existed, formal discussions on it only entered Shī’ī legal theory a few centuries ago. In the last century one scholar who attempted to iron out the details of what exactly constitutes as the practice of reasonable people and under what circumstances can it be referred in derivation of law was al-Shahīd Muḥammad Baqir al-Ṣadr (d. 1980). As a simple example, one of the strongest arguments for the necessity of following a jurisconsult (taqlīd of a marja’) is dependent on the practice of reasonable people which states that humans, no matter where they live and what time period they lived in, all tend to “refer” to someone who is more informed in an area than the person themselves. This general notion of “referring” is probative because the practice of reasonable people is binding, hence one must also do the same when it comes to religious matters.It should be pointed out that though on occasions Kadivar attempts to resort to the practice of reasonable people to argue for the abolishment of slavery, the question is whether the detestability perceived by people today is an actual instance of this practice or is it rather an application of something else that happens to be an instance of their practice. In the case of the latter, one would need to establish that the present-day applications of the reasonable people are also always binding or not – especially knowing how applications do not necessarily mean validity in and of themselves.For example, if the reasonable people of the world came together to begin following a non-scholar on all their religious matters, that would simply be an application of the practice of reasonable people which was to “refer”. However, it would be argued that the way they are “referring” is flawed and not necessarily binding and useful in deriving law.
- Other verses of the Qurān regarding captives of war are 8:67, 8:70, 33:26, 2:85, 76:8 – and none of them even remotely allude to taking these captives as slaves.
- In verses 50 and 52 of Sūrah al-Aḥzāb rules specifically concerning the Prophet (p) have been mentioned
- Al-Mīzān, vol. 4, pg. 267
- In verse 71 and 76 of Sūrah al-Naḥl and verse 28 of Sūrah al-Rūm other points regarding this topic have also been mentioned.
- TN: In logic, every quantified proposition can be divided into khārijī or ḥaqīqī. A khārijī proposition is where the truth of the judgement depends on the instances of the subject existing in extra-mental reality and the predicate actually applying to them in extra-mental reality. In the ḥaqīqī proposition the judgement is true if the intellect can simply perceive the instances of a subject to exist in extra-mental reality as carrying the predicate. In the context of our discussion, Kadīvār is claiming that the religious propositions in the Qurān discussing slavery are all khārijī propositions. Meaning all laws applying to the instances of the subject of slavery are for cases that that existed in a certain time and place, and one cannot presume them to be ḥaqīqī propositions whose law is inclusive of any instances of the subject of slavery that do not yet exist.
- Wasā’il al-Shī’a, v. 15, p. 131 and v. 18, p. 244, Kāfī, v. 5, p. 210, Tahdhīb, v. 6, p. 162
- Wasā’il al-Shī’a, v. 18, p. 246, Tahdhīb, v. 7, p. 77, Istibsār, v. 3, p. 83
- Kāfī, v.6, p. 195, Man Lā Yahdhuruhῡ al-Faqīh, v. 3, p. 141, Tahdhīb, v. 8, p. 235, Wasā’il al-Shī’a, v. 16, p. 33
- Kāfī, v. 5, p. 477 Wasā’il al-Shī’a, v. 14, p. 522
- Wasā’il al-Shī’a, v. 21, p. 121, Man Lā Yahdhuruhῡ al-Faqīh, v. 3, p. 458
- Kāfī, v. 5, p. 468, Tahdhīb, v. 7, p. 244, Wasā’il al-Shī’a, v. 21, p. 125
- Kāfī, v. 5, p. 481, Wasā’il al-Shī’a, v. 21, p. 149, Tahdhīb, v. 7, p. 346, Tafsīr al-Ayyāshī, v. 1, p. 232
- Kāfi, v. 6 p 168, Wasā’il al-Shī’a, v. 22, p. 98
- Kāfī, v. 5, p. 525, Wasā’il al-Shī’a, v. 4, p. 409
- Wasā’il al-Shī’a, v. 4, p. 411, ‘Illal al-Sharā’i, v. 2, p. 345 and 346
- Wasā’il al-Shī’a, v. 9, p. 23, Tahdhīb, v. 8, p. 216
- Bihār, v. 74, p. 141; al-Mahāsin, pg. 625. TN: Could not locate this tradition in al-Maḥāsin, however on vol. 2, pg. 625 a tradition is mentioned regarding how to discipline slaves.
- Kāfi, v. 5, p. 114, Tahdhīb, v. 6, p. 362, Istibsār, v. 3, p. 63, Wasāil al-Shī’a, v. 17, p. 136 ‘Illal al-Sharā’i, v. 2, p. 530
- TN: This approval is to such an extent that some of the later Shī’ī Imāms, like Imām al-Kāẓim (a), Imām al-Hādī and Imām al-‘Askarī, had no permanent or temporary wives. They only appear to have had slaves who they had children with and so the women were considered Umm Walad. It is also true that many of the later Imāms were born through mothers who were slave women. Muḥammad Taqī al-Shūshtarī – one of the greatest Shī’ī scholars of ‘Ilm al-Rijāl of the 20th century writes:
وأمّا الكاظم “ع” فلم نقف على من ذكر له زوجة مع كثرة أولاده، بل قالوا في الكلّ: إنّهم لإمّهات أولاد
- For more details on the division of law into declaratory and injunctive, see chapter 2 of Lessons in Islamic Jurisprudence of Muḥammad Bāqir Aṣ-Ṣadr, translated by Roy Mottahedeh.
- I have discussed this issue at length in the article Az Islam Tārīkhī beh Islām Ma’nawī.
- TN: Most Shī’ī scholars, like the Mu’tazalī, ascribe to the notion of objective morality (al-ḥusn wa al-qubḥ al-‘aqlīyayn or al-dhātīyayn). The argument being made here is that our basic moral perceptions are prior to religion and in fact theological arguments cannot even be built without these perceptions. This topic and its implications is a subject of rigorous academic debate in contemporary Iran.
- TN: These are terms learned in traditional logic.
- TN: This line of argument is used by other contemporary jurists as well for certain other laws. For example, Āyatullah Makārim Shīrāzī argues for the prohibition of deriving sexual pleasure – other than intercourse, which is prohibited – from an underage wife due to the extreme immorality attached to it in the perception of the reasonable people today. See footnote #30 here.