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Table of Contents – Laws of Islam Concerning Women and Men

 

 

Laws of Religion

Laws of Islam Concerning Women and Men

 

23.  Relations with Slaves

from the Qur’an,

major hadith collections

and Islamic jurisprudence

 

 

Relations with Slaves

From the Qur’an

 

(Editor’s note: Slavery was part of the world in which the Qur’an came into existence. The treatment of slaves, including the issue of sexual relations with them, is therefore discussed in the Qur’an, as summarized below.)

 

Contents

 

Sexual intercourse with, and marriage of, slaves

 

Modesty in front of slaves

 

Punishment for indecency

 

 

Sexual intercourse with, and marriage of, slaves (Qur’an). The Qur’an says that one of the necessary virtues of those who will dwell in Paradise is that they abstained from sexual activity except with their wives and female slaves.[1] Also, prosperity is promised to believers who pray humbly, avoid vain talk, pay the zakat and abstain from sexual activity with all except their wives and their female slaves.[2]

 

A person should marry someone who is unmarried or a slave who is righteous.[3]

 

A man who does not have sufficient wealth to marry should remain chaste until Allah enriches him.[4] If such a man is afraid of falling into sin, he should marry a believing female slave.[5]  He should get permission from her owner[6] or award her her freedom.[7] He is to give her a bridal payment (mahr^***).[8] It is to be an honorable marriage, not lewdness or the taking of a lover.[9] If the slave-girl wishes to remain chaste, she should not be compelled into prostitution – though if a man does compel her in this way, Allah is forgiving and compassionate.[10]

 

A man may have up to four wives. However, if he fears that he will not be able to treat them all equitably, he should marry only one or else take a slave woman, which will help prevent him from doing wrong.[11]

 

The Qur’an (4:24) says that a woman who is married to someone else is forbidden to a man unless that woman is his slave.[12]

 

Do not marry a polytheist. It is better to marry a believing slave than a free polytheist no matter how pleasing the polytheist may be.[13]

 

At one point, Muhammad is forbidden from taking any additional women beyond those he has at that time, except for his female slaves.[14]

 

 

Modesty in front of slaves (Qur’an). The Qur’an says that believing women should cover their breasts. They should not reveal what is hidden except to their slaves, their women, men who serve them who lack sexual vigor, their husbands, their fathers, their fathers-in-law, their sons, their husbands’ sons, their brothers, their nephews (that is, close male relatives whom they are forbidden to marry (mahram)) and children who do not understand about the private parts of women.[15]

 

There are three times of day when a person needs privacy due to nakedness. These are before the dawn prayer, in the noonday heat and after the prayer at nighttime. During these three times a person’s slaves and children under the age of puberty should ask permission to enter into the person’s presence.[16]

 

Visitors to Muhammad’s home were to speak to his wives from behind a curtain in order to ensure purity of heart both of the visitor and Muhammad’s wives and also so that Muhammad would not get annoyed.[17] Muhammad’s wives could, however, reveal themselves to their fathers, their sons, their brothers, their nephews and their slaves or women.[18]

 

 

Punishment for indecency (Qur’an). The Qur’an says that if a married slave woman commits indecent acts, her punishment is half that of a free woman.[19]

    

Relations with Slaves

From the hadith compilations of al-Bukhari and Muslim

 

(Editor’s note: Slavery was part of the world in which Muhammad and his Companions lived. The treatment of slaves, including the issue of sexual relations with them, is, therefore, discussed in the hadiths, as summarized below.)

 

Contents

 

Sexual intercourse with, and marriage of, slaves

 

Proper treatment of slaves

 

 

Sexual intercourse with, and marriage of, slaves (hadith). After winning a battle, Muhammad distributed the captured women and children among the Muslim victors (the captured men were all killed).[20] Muhammad had no objection to the intention of his men to have sexual intercourse with enslaved captured females.[21] Sexual intercourse even with those captured women who were already married to polytheists was permitted.[22] (These captured women were slaves of the Muslims and thus sexual intercourse with them was permitted, as stated in the Qur’an, cited above. The Qur’an (4:24) says that a woman who is married to someone else is forbidden to a man unless that woman is his slave. This prohibition occurs in a section of the Qur’an listing those women who are forbidden for marriage,[23] and so it is often read as meaning that it is permitted to marry a slave who is already married. However, a hadith says that this verse of the Qur’an (4:24) means that it is permitted to have sexual intercourse with a married woman who has been captured in battle (and is thus a slave) after the normal ‘Iddah period has elapsed.[24])

 

When one of the Muslim men (Ali) had sexual intercourse with a female captured in battle, Muhammad said that the man deserved more than that from the booty.[25]

 

After the Muslims won a battle, Muhammad told one of his men to take any female captive, now enslaved, as his own. The man selected Safiyya, but when Muhammad was told that she was fit only for Muhammad himself, he told the man who selected her to find another captive female slave for himself. Muhammad took Safiyya to be his own.[26] He consummated his marriage to her.[27] The people did not know if he had married her as a slave or as a free woman until he appeared at the wedding feast with her. Since she was veiled, it was clear that she was a free woman as

Muhammad’s wife and no longer a slave.[28] Muhammad had manumitted her and her manumission was her bridal payment (mahr^***).[29]

 

When Muhammad heard that a man had had sexual intercourse with one of Muhammad’s female slaves, he ordered that the man be struck in the neck. However, the punishment was not inflicted because it was discovered that the accused man’s penis had been cut off.[30]

 

A man was stoned to death upon Muhammad’s order for committing unlawful sexual intercourse with another man’s female slave.[31]

 

 

Proper treatment of slaves (hadith). When a man in a family that owned a female slave slapped her, Muhammad ordered that she be freed.[32] This same rule, that a slave must be freed if the slave has been hit[33] without having committed some offense,[34] applies to male slaves as well as female. Muhammad said that failure to free a slave who has been beaten is that the slave’s owner will suffer the Fires of Hell.[35]

 

A female slave must be consulted before she is married to someone. Muhammad said that her consent will be shown by her silence when asked.[36]

 

A female slave was permitted by Muhammad to decide whether or not to become divorced from her husband at the time of her manumission.[37] Her husband was said to be a slave in some reports[38] and a free man in others,[39] while some hadiths report lack of knowledge about whether he was slave or free.[40] It is said that her husband must have been a slave because Muhammad would not have let her divorce him if he were a free man.[41] When the manumitted slave woman exercised her option to divorce her slave husband, Muhammad saw how much the divorced man loved her and wanted to be married to her again. Muhammad asked her to return to him but, when she refused, he did not order her to marry him again.[42]

    

Muhammad told his wife Aisha to free a female slave because the slave was among the descendants of Ishmael.[43] However, when another one of Muhammad’s wives told him that she had freed one of her female slaves, Muhammad said that it would have been better if she had given the slave to one of her uncles.[44]

 

A hadith reports that Muhammad said that a person who falsely accuses a slave of unlawful sexual intercourse (zina^§§) will be punished on the Day of Resurrection.[45]

 

When Muhammad’s wife, Aisha, was accused of zina (unlawful sexual intercourse), Muhammad asked Aisha’s female slave about Aisha’s actions and character.  He considered her statement without regard to the fact that she was a slave.[46]

 

Muhammad said that an unmarried slave woman who commits unlawful sexual intercourse (zina) is to be flogged. If she repeats the act, she is to be flogged again. On the third or fourth repetition, she is to be flogged and then sold at any price, even if just for a hair rope.[47]

 

Muhammad forbade compelling a female slave into prostitution and taking her earnings,[48] or the earnings of any prostitute.[49]

 

After a battle with a Jewish tribe that surrendered to the Muslims, Muhammad agreed that all the men of the tribe would be killed and that the women and children would be taken as enslaved captives and distributed among the Muslims.[50] He granted some of them safety after they came to him, and they embraced Islam.[51]

 

When asked if he was concerned about the killing of women and children during an attack on a tribe of polytheists, Muhammad said he was not concerned because these women and children were polytheists.[52] When a dead woman was found after a battle, Muhammad expressed his disapproval of killing women and children[53] and forbade killing them.[54]

 

Relations with Slaves

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

(Editor’s note: Slavery was part of the world in which the legal codes of Islam were first developed. The treatment of slaves, including the issue of sexual relations with them, is, therefore, part of those legal codes. We have summarized these rules below based on the English translations cited. However, a number of laws are not included in the summaries below because they were left untranslated in the English edition of Reliance of the Traveller, the code of Shafi‛i law.)

 

 

Contents

 

Warfare and slaves

 

Sex and marriage with slaves

 

Ending marriages to slaves

 

Rescinding purchase of an enslaved concubine

 

 

Warfare and slaves (jurisprudence/fiqh/sharia). (Editor’s note: Since people become slaves by being captured in war, some general rules concerning warfare are summarized here.)

 

The scholars^* agree that warfare for Islam (jihad) is a necessary collective obligation. Some must fight, others must stay behind. It is agreed that a warrior must be a healthy man with sufficient resources to go off to war. Fighting is required for healthy, free Muslim men above puberty with sufficient resources to go to war who have the permission of their parents. A man must get permission to fight from his parents, if living, except at those times when conditions require all eligible men to fight. Scholars disagreed as to whether this requirement applies to polytheist parents. There is disagreement among the scholars about whether a creditor must consent to release a man for war. Most say that a debtor can fight if he leaves something behind to settle his debts.[55]

 

The scholars agree that war is to be directed against all polytheists, except that Malik said not to initiate war against the Ethiopians or the Turks.[56] An invitation to join Islam is to be given and rejected before an attack of war is made.[57]

 

With certain restrictions, it is permitted to kill or enslave an enemy and destroy or seize his property.[58] Only men who have passed puberty can be slain in war or after capture. Malik exempted from execution hermits, the blind, idiots and those too old to fight; Abu Hanifa exempted the old and decrepit; according to al-Shafiʽi, there is no category of men prisoners of war exempt from execution.[59]

 

Most scholars say that it is up to the imam to decide what to do with prisoners of war, who might be pardoned, enslaved, held for ransom, required to pay jizya^**, or executed.[60] Reliance of the Traveller specifies that it is the caliph who decides the fate of a captured man. If the captive accepts Islam before the decision is made, he may be enslaved, freed or ransomed, but not killed.[61]

 

Children and women are not to be killed unless they are fighting in the war.[62]

 

Al-Shafiʽi and the Shafiʽi school hold that if a woman is taken as a prisoner in war, she becomes a slave and her marriage is dissolved.[63] Abu Hanifa limits this by saying that the marriage is dissolved unless she and her husband were imprisoned together, at the same time.[64]

 

A guarantee of safety may be granted to a prisoner of war by the imam or any free Muslim male or female or a Muslim slave. This guarantee protects the prisoner from execution but not from enslavement. Malik says that a Muslim slave can only grant a guarantee of safety to a prisoner of war if that slave participated in the fighting.[65]

 

Muslims are to fight against the People of the Book (Jews, Christians), though not against Christian Arabs, either to convert them to Islam or to force payment of the jizya. Al-Shafiʽi says that jizya is also to be imposed on Zoroastrians, while Malik says that jizya is to be collected from all polytheists.[66] 

 

 

Sex and marriage with slaves (jurisprudence/fiqh/sharia). The scholars^* agree that a man is permitted to have sexual intercourse with his wife or with a slave he owns and is not married to (a concubine).[67]

 

Slaves and free women may marry slaves.[68] Malik, Abu Hanifa, and al-Shafiʽi agree that a free man may marry a female slave only if he lacks the bridal payment (mahr^***) needed for a free woman or to prevent him from sin that would result from sexual desire.[69]

 

It is forbidden to marry or take as an enslaved concubine specific close relatives (mahram) by descent or by marriage.[70] Women forbidden as wives or enslaved concubines by blood relationship are one’s mother, grandmothers (and upwards), daughters, children’s female descendants, sisters, nieces and nephews and their female descendants, aunts and great-aunts (and upwards).[71] Women forbidden as wives or enslaved concubines due to a relationship by marriage are one’s wife’s mother and grandmother, the wives of his father or father’s father (etc.) and the wives of one’s children and their descendants.[72]

 

Al-Shafiʽi says that if a man has sexual intercourse with his female slave and later learns that she is his sister, then no legal transgression has occurred since he was unaware of their relationship at the time of intercourse.[73]

 

Al-Shafʽi says that if a person comes to own a slave who is one of his parents, grandparents, children, or grandchildren, the slave is automatically freed. To these relatives, Malik adds brothers and sisters. Abu Hanifa adds to these aunts, uncles, nieces, nephews, etc. – all who are forbidden in marriage (mahram).[74]

 

It is forbidden to be married to two sisters at the same time[75] or to a woman and her aunt.[76] Malik, Abu Hanifa, and al-Shafiʽi agree that it is forbidden to take two sisters who are slaves as concubines, though other scholars disagree.[77] Malik and Abu Hanifa say it is forbidden for one sister to be a man’s wife and the other sister his enslaved concubine, while al-Shafiʽi says this is permitted.[78]

 

 

Ending marriages to slaves (jurisprudence/fiqh/sharia). Malik and al-Shafiʽi say that if the husband is a slave, the number of divorce pronouncements leading to irrevocable divorce is reduced from three to two. Abu Hanifa says this reduction from three to two pronouncements occurs only when the wife is a slave.[79]

 

The scholars agree that the sale of a female slave does not result in her divorce.[80] A female slave can divorce her slave husband when she is manumitted.[81] Abu Hanifa says that she can also divorce her husband if he a free man, but al-Shafiʽi and Malik disagree.[82]

 

 

Rescinding purchase of an enslaved concubine (jurisprudence/fiqh/sharia). In the sale of a slave, as with any other commodity, undisclosed defects may call into question the validity of the sale. The scholars^* agree that defects in a slave that can negate the validity of the purchase include a missing eye, hand, or foot; bodily disease; bed-wetting; or blindness. In addition, Abu Hanifa says that habitual engagement by the slave in unlawful sexual intercourse (zina) can also make the purchase invalid. To these defects, the Maliki school adds marriage in a female slave; debt of the slave; pregnancy or more than a small amount of gray hair in a female slave if she is beautiful; non-menstrual blood discharge, menopause, and thin hair; and femininity in a male slave or masculinity in a female slave.[83]

 

Such defects can result in the seller having to take the slave back and refunding the full purchase price to the buyer.[84] If the buyer has had sexual intercourse with the slave, however, Abu Hanifa says that she may not be returned to the seller, but the buyer can collect compensation for the slave’s defect. Malik says that the female slave may be returned to the seller for a full refund. Al-Shafiʽi says that the buyer may return the slave to the seller, but he has to compensate the seller for the decreased value due to his sexual intercourse with her if she had been a virgin at the time of the sale.[85]

    

________________

 

^*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^**Jizya is the poll tax paid by a dhimmi. A dhimmi is non-Muslim who agrees to follow certain rules of behavior,[86] wears distinctive clothing that Muslims do not wear,[87] pays a poll tax (jizya),[88] and is protected by the Muslim rulers.[89] For al-Shafi‛i[90]  and the Shafi‛i school[91] only Jews, Christians, and Zoroastrians (or Magians) may be dhimmis but Malik[92] and the Hanifi[93] say that even polytheists may be dhimmis.

 

^***Mahr is a payment given by the groom to the bride upon their marriage.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

^§§Zina, unlawful sexual intercourse, includes both adultery involving a married person and sexual intercourse between two people who are not married to anyone (though sexual intercourse with one’s female slave is permitted and so is not zina.)

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Table of Contents – Laws of Islam Concerning Women and Men

 

Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

BK:    Hadith collection of al-Bukhari as found here (USC/CMJE website) and here (ebook download). In a few instances, the hadiths on the USC website differ from those in the ebook download, either by having slightly different numbering of the hadiths or because the hadith appears only on the USC site and not in the ebook download. Such cases are noted in the footnotes by putting either “(USC)” or “(ebook)” after the relevant hadith number when it applies to only one of these two sources. Part or all of the hadith collections of al-Bukhari, with somewhat different numbering systems, can also be found here, here and here.

ML:    Hadith collection of Muslim as found here and here. Part or all of the hadith collection of Muslim, with somewhat different numbering systems, can also be found here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.