Bernard K. Freamon1
Slavery often presented a conceptual paradox for jurists, legislators, and legal practitioners functioning in all parts of the globe and throughout human history. Puzzlement over the treatment of human beings as property troubled many jurists in ancient, medieval, and early modern legal systems and it continues to trouble those working in modern international and domestic systems. This puzzle persists even though slavery, at least as it has been classically defined, is now legally abolished everywhere. The commodification of human beings remains a stubborn problem for the law notwithstanding worldwide abolition. We are no longer quite sure what we mean when we say that certain kinds of human relationships amount to slavery. Because the definition of slavery still bedevils us today, it seems useful to study past efforts to define slavery and slave ownership in the great systems that have contributed to the worldwide legal history of slavery and abolition. The Shari’a is one of those great systems.2 Although defining and conceptualizing slavery may not have puzzled medieval and early modern Islamic jurists in the same way that it has bothered jurists in modern times, the issues presented by the existence of the broad variety of forms of slavery permitted by Islam were nevertheless complex and nuanced topics of concern for the Shari’a. This chapter will therefore undertake an examination of the definitions and conceptions of slavery and slave ownership in the Islamic legal system.
Although Islam’s core texts, the Qur’an and the Sunnah, exhorted the adoption of an enlightened and emancipatory attitude toward slavery, Muslim jurists interpreting those texts struggled with many of the same contradictions presented by the problem of slavery in other systems. Islamic law’sdefinition of human freedom was deceptively simple: it declared that freedom was nothing more than the absence of slavery.3 Muslim jurists therefore devoted much of their energy determining where, when and how a human being might be considered to be enslaved and what that meant in terms of human relations and religious obligations. This chapter will show that Islamic jurisprudence’s approach to slavery was quite similar to that of the other systems, in that the basic definition was firmly rooted in property concepts while haltingly recognizing the humanity of the slave. However, Islam’s recognition of that humanity emerged from a new and powerful set of textually based values—piety, charity, an emphasis on the liberation of slaves, and an egalitarian theology and morality—giving the Islamic approach an emancipatory ethic not readily seen in other legal systems. This ethic was influential and often caused rejection of the property based motif for regulating slave ownership and emancipation of slaves by Muslims.
The Islamic approach to slavery did not emerge out of whole cloth. When the Prophet Muhammad received the first revelations of the Qur’an, beginning in 610 CE, slavery and slave-trading were flourishing institutions throughout the Middle East and in the Indian Ocean and Mediterranean worlds. The Roman law of slavery, codified by jurists in the service of the Emperor Justinian, was firmly in place in the Byzantine provinces, which included Damascus, Jerusalem, and other cities in Egypt, Palestine and Greater Syria. The Sassanian Empire, also flourishing at this time and based in Iraq and Persia, contributed its own law of slavery to the greater legal culture, as did, to a lesser extent, the Abyssinian polity across the Red Sea, and the Hindu Rajyas in the east. Jewish tribes living in the region similarly had their own law of slavery, drawn from the Torah and rabbinic commentaries on those texts. Their practices probably also influenced approaches to slavery in the region. Additionally, there was a vibrant customary law milieu among the Arab tribes on the Arabian Peninsula, particularly in Yemen and southern Arabia, and this milieu contained a fairly well-developed set of rules on slavery and slave-trading. There was, therefore, much juridical and jurisprudential experience for God and the Prophet to draw upon.
Without question the Qur’an accepted slavery as a fact of social, economic, and political life. Many of the rules on slavery it left in place resembled rules from pre-Islamic systems. Yet it is also true that the revelation of the Qur’an, the example of the Prophet, and the interpretation of these sources by the jurists urged believers to take a significantly new approach to the issue of slavery, emphasizing the emancipatory ethic to which we have already referred. This new approach caused the introduction of five substantive innovations that were in many ways ground-breaking:
1. The jurists held that there was a presumption of freedom in all legal affairs between human beings (al-asl huwa’l hurreya—‘the original position is one of freedom’). Although this maxim was not completely new, the Muslim jurists gave it important emphasis.4
2. The jurists held that no Muslim could lawfully be enslaved.5
3. The Caliph Umar and jurists coming after him gave special recognition to the legal status of the slave concubine who gives birth to children fathered by her owner, giving rise to two important results:
(a) the children of such unions were free at birth and the equal of the father’s other children; and
(b) the concubine is emancipated by operation of law at the death of the owner.6
4. A Quranic emphasis on emancipation rather than enslavement; and
5. A reduction of the legally permissible bases for enslavement in Islamic law to just two:
(a) capture as a prisoner in a jihad, and
(b) birth to two lawfully enslaved parents.
All other means of enslavement, such as self-sale, sale by one in loco parentis, punishment for crime, debt bondage, were abolished.7
Definitional problems resulted from these innovations and these problems were in many ways about the struggle between the pre-Islamic practices and this new approach. To understand this struggle it will be helpful to briefly outline how the new Islamic legal system evolved and its approach to the concepts of ownership and the ownership of slaves. We will then examine the definitional issues in some detail.
The system of Islamic jurisprudence we recognize today as the Shari’a began to emerge while the Prophet was alive, matured during the first three hundred years after his death, and achieved a wide consensus on its basic framework by the end of the twelfth century CE (the sixth century of the Islamic Era). This framework holds that the Shari’a derives its legal rules and principles from four sources. The first two of these sources, the Qur’an, the corpus of the revelations to the Prophet, and the Sunnah, precedential traditions from the Prophet’s life, are bodies of textual knowledge and are treated as the primary sources of the law. The next two sources, Ijmā’ (juristic consensus) and Qiyas (reasoning by analogy), are methodologies developed by jurists. They function as secondary sources because they supply the rule of decision, using the reasoning of jurists, in cases where the primary sources are silent, ambiguous, or cannot be applied because the underlying factual circumstances giving rise to the question of law did not exist at the time of the revelation.
The recognition of reasoning as a source of law explains, in part, the development of the ‘schools of law’ in the Islamic legal system, known as the madhhabs. The madhhabs initially began their existence as juristic guilds or study circles that surrounded particularly adept and influential jurists who had developed followings. As imperial and societal demands for a cogent jurisprudence increased, the weaker schools of law began to disappear and a consensus developed settling on four agreed-upon madhhabs in the Sunni jurisprudence. A similar process occurred in the Shi’a jurisprudence. The rulings in each school are considered to be authoritative for those believers who adhere to the jurisprudence of that school. From about the eighth century CE onward, jurists in each of the schools began to publish treatises on a myriad of subjects of positive law, derived from the sources I have described. The product of these processes came to be known as the fiqh, meaning ‘comprehension’ or ‘understanding’, and it is the fiqh that actually constitutes the positive law in Islam. By the thirteenth century CE, the fiqh was quite a well-formed and robust basis for the development of complex and intricate sets of rules governing many of the everyday circumstances encountered by citizens living in the Islamic cosmopolitan centers. Jurists, judges, and religious scholars came to rely so heavily on this body of knowledge that many stopped resorting to the original sources to find answers and, instead, clung to the rulings of their individual madhhab. The sources remain important, however, if we are to understand the fiqh.8
God, humankind, and property in the Qur’an9
The Qur’an does not offer any definition of property or the ownership of things. It uses the Hijazi dialect of the Arabic language in use in Mecca at the time to describe such concepts and it seems to assume that the listener (reader) will understand the meaning of the terms it uses.
Even though it does not offer definitions, it makes manifestly plain its instructions to human beings with respect to the attitude they should have toward wealth and those material things that they believe they own. Wael Hallaq’s descriptions of the Islamic conceptions of property and ownership are quite apt:
The Islamic juristic categories of ownership and property are grounded in the theological conception that God is the sole and ultimate Owner (Malik) of the universe. Malik, a name and an attribute of God, is the active participle denoting ‘one who owns’, while milk, the verbal noun, represents a state in which ownership obtains. God is thus the true owner of everything, including human beings and all they possess. Strictly speaking, therefore, human beings own nothing.10
Thus, it is only by ‘divine generosity’ that a human being gains possession or seeming ownership of any material thing.11 The sources suggest that all property held on earth by human beings is, in reality, held in trust (amana) as a gratuity granted by God.12 This implicates Islamic notions of the absolute sovereignty of God and the human being’s rather instrumental role as His vicegerent on earth. The human being’s sojourn on earth is therefore not as an independent sovereign but rather as a fiduciary agent of the greater sovereign.13 Consistent with this notion, any property acquired by a human being is subject to that trust and, if the human being acquires, uses, or disposes of the property in violation of the trust, the action becomes haram (forbidden) or makruh (reprehensible) and the result of such action may be determined to be void, voidable, or condemnable in the eyes of the jurists.14 The fiqh manuals are replete with examples of such rulings. These principles were used to craft legal rules and ethical proscriptions that would, for example, condemn the ostentatious acquisition of wealth as well as excessive generosity, the foolish disposal of property, or the welcoming of impoverishment. There is thus a theological and derivatively social and ethical aspect to any legal conception of ownership in Islamic law.15
Notwithstanding these ideas, the Qur’an encourages Muslims to go out into the world and to seek and acquire the full benefit of God’s earthly bounty during their lives.16 The Sunnah of the Prophet also makes it clear that acquisition of property is not to be discouraged.17 Jurists interpreting these sources concluded that the protection of property was one of the five defining purposes of the Shari’a.18 The recognition and protection of the earthly right to own property is thus a robust and vigorous focus of the Islamic law. While Muslims are encouraged to seek and enjoy material things, the Qur’an also exhorts the believers to act with temperance, balance, and moral restraint in the acquisition and use of property and wealth, consistent with the paradigmatic theological, social, and ethical conception of property and wealth that I have described.19 This emphasis on balance and moral restraint played a significant role in the development of the fiqh on private property and gives rise to an overarching idea counseling a ‘middle way’ with respect to the human being’s relationship to private property, allowing her to aggressively seek property and wealth but requiring her to behave ethically and practically in that pursuit, in consonance with the trust granted to her by the Creator.20 This ethical guidepost finds its way into the legal rules on ownership and, more specifically, on the ownership of slaves.
(2) Mal and malaka
There are a variety of ways to express the idea of ownership in the Arabic language. Not all of them are expressions that have a particular legal significance but many are in fact used in the Qur’an and in legal discourse. The most commonly encountered terms for the concept of ownership are those derived from the Arabic root malaka, meaning ‘to take in possession, take over, acquire, seize, lay hands (on), … be the owner of’21 and the related word mal, an Arabic noun meaning, in the old language, ‘possession, property, referring among the Bedouins particularly to camels, but also to estates and money, and in any case to concrete things’.22 One can see that the word malik, meaning ‘king’ or ‘sovereign’ as well as ‘owner’, comes from the same root. The old language divided species of property into at least two classes, mal samit, ‘dumb property’ or inanimate things, like money, and mal natik, ‘speaking property’, referring to slaves and livestock.23
The oldest Arabic language dictionary in existence was published within two hundred years after the death of the Prophet Muhammad. Called the Kitab al-‘Ayn and authored by Al-Khalil ibn Ahmed al-Farahidi, it describes ownership as a mulk (possessory interest) and defines it as ‘what your hand possesses of money [things?] and khawal’.24 Farahidi, in another section of the dictionary, defined khawal as ‘What God granted you of slaves and bounty’.25 Even the modern Arabic usage of the word khawal connotes ‘chattels, property, especially consisting in livestock and slaves’.26 It appears, therefore, that slavery was useful to Muslims in defining the concept of ownership in the original usage of the early post-prophetic Arabic. Note that Farahidi incorporates the Quranic idea that all property is granted to the owner by God. Lane’s Arabic-English Lexicon similarly describes the variety of meanings, including legal meanings, ascribed to the word malaka.27 The lexicon makes it clear that the use of the word malaka connotes exclusive possession or ownership and can also signify ‘command’ or ‘authority’, ‘dominion’ and ‘power’.28
The word mal is also used quite frequently in the Qur’an and connotes ‘goods, wealth, property, substance, possessions, riches’.29 In legal discourse the word mal can be used to describe anything which is the object of a transaction.30 This could include non-tangible things, such as the usufruct of a thing, a guardianship, a legacy, a lease of property, partnership profits, and the like.31 It is here that we find in the Qur’an a cornucopia of references laying down a number of ethical duties that should be observed by the believer with respect to his relationship to property and wealth. Among these are those verses counseling spending wealth ‘in the way of God’, being kind and generous in gifts of property to the poor and needy, avoiding needless waste of property and ostentation, cognizance of fiduciary obligations to orphans and other vulnerable persons, and recognition of the fleeting nature of possession of property in the daily life of the believer.32
Nevertheless, ownership of property is not a subject of burning interest in the Qur’an, although it did occupy greater attention of the jurists in the manuals of fiqh. When the word malaka is used in the imperfect tense or as a noun, it often connotes a meaning related to the concepts of power, dominion, rulership, or sovereignty, particularly the sovereignty of God. Concubines are referred to using the idiomatic expression ma malakat aymanukum (‘those whom your right hands possess’) and there are a number of provisions governing their rights and treatment.33 It is quite startling to note that the most common usage of the word malaka (in the property sense) in the Qur’an