Fundamental Human Dignity and  the Mathematics of Slavery Dr. Mohammad Omar Farooq June 2006

Introduction

Could five be equal to three or two be equal to one? Not in math, in terms of actual numbers. But it could be, if we are talking about various objects, or about slavery. 

Did you know about the Three-fifths Clause, a clause that equated five slaves to three free persons in USA? Even though the effects and implications of it has gone through legal amendments in the U.S. Constitution, the Clause is still there.

In Article I, Section 2 of the U.S. constitution appears the Three-fifths Clause, which explains the apportionment of representation and taxation. It reads:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a term of years, and excluding Indians not taxed, three-fifths of all other Persons.

Historically, the northerners were often against slavery, and the southerners were in its favor. Yet, at  the time of framing the constitution, it were the southern states that wanted to count the slaves toward representative seats, while the northerners did not. The compromise was the Three-fifths Clause.

During the framing of the Constitution, Southern delegates argued that slaves should count toward representative seats, while the delegates of northern states, most of which had or would soon abolish slavery, argued that to count slaves as members of the population would grant an unfair advantage to the southern states. The result of this debate was the adoption of the Three-fifths Clause, which allowed three-fifths of all slaves to be counted as people. [See Link]

There are those who would like to rationalize that the Three-fifths Clause doesn't view slaves as property. "The slaves were not viewed as property, but were treated more as a reflection of a wealth-producing capacity. The entire population was used as a measure of wealth-producing power, and each person was considered possible of producing wealth, whether slave or free. Thus the more people in a state, the more capability it had to produce wealth, and the more it could be directly taxed or represented." [Boyd, 1995]

Regardless, no rationalization can justify why the ratio was not one to one. Put differently, why was one human being not considered as equal to another? Well, Three-fifths Clause was an improvement, and gradually slavery as a formal institution has been abolished in USA. At least, no member of the United Nations accepts slavery as an acceptable institution. That may not mean that there is no slavery-like or near-slavery conditions in various parts of the world. Indeed, Kevin Bales, the world’s leading expert on "contemporary slavery" awakens us to a dark, ongoing reality. His book titled Disposable People: New Slavery in the Global Economy has become a landmark work where he demonstrated "that the horrors of forced labor are not confined to history. It explained that there are currently over 27 million slaves—people forced by violence or the threat of violence to work with little or no hope of freedom." [Link]  Nevertheless, at least the humanity has come to a broad agreement that slavery is unacceptable.

Slavery and Traditional Muslim Minds

When I first read about the Three-fifths Clause, I was shocked because I believe in the fundamental dignity of all humans.  Hence I can't reconcile my mind with slavery of one human being by another. Nonetheless as a Muslim I am also aware that slavery existed before Prophet Muhammad and, despite his abolitionist position and role, it continued for centuries. My understanding of the Qur'an and the Prophetic position and role has led me to conclude that Islam and slavery are incompatible. But although slavery is now legally prohibited by international or global treaties [See UN], the orthodox position of the Muslims is that slavery is undesirable and it should be gone, but it has not been prohibited by Islam. 

It should be noted that slavery, as it was normalized marginally in Muslim societies after the Prophet, is not comparable qualitatively to the slavery that emerged in Western societies, including that under the Three-fifths Clause. The famous Dred Scott case in the USA, where the Supreme Court declared slaves had no right to sue in the federal court and that they must remain slaves, is illustrative. 

[He] first went to trial to sue for his freedom in 1847. Ten years later, after a decade of appeals and court reversals, his case was finally brought before the United States Supreme Court. In what is perhaps the most infamous case in its history, the court decided that all people of African ancestry -- slaves as well as those who were free -- could never become citizens of the United States and therefore could not sue in federal court. [PBS 1]

Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it." [PBS 2]

Contrary to this, the first muazzin [prayer caller] of the Prophet's mosque, Bilal, was a formerly Abyssinian slave, freed by the Prophet. In context if one considers the brutality, cruelty and oppression of the slaves in the Western world, the slavery marginally normalized during the first few centuries after the Prophet would seem quite tame. Over time, however, slavery conditions deteriorated in Muslim societies as direct consequence of the rise of autocracy, hereditary, hegemonic rules as well as social structures that were in opposition with Islamic guidelines. It is a matter of concern to me as a Muslim that some traditionalist Muslims are still proponents of slavery both theologically and morally, if only because it was not prohibited in Islam outright.

In a recent email exchange a fellow Muslim, a highly educated university professor in USA who is also deeply pious, wrote to me: "... in my humble opinion (correct me if I am wrong) slavery is not haram.  That means if I have a slave today, I will not be committing haram act.  However, I understand that Allah, The Most High and His Prophet (sas) took every opportunity to discourage slavery and has given us numerous options to avoid it.  So, if I had written a comment at the end of that hadith that the context of hadith is in past tense (as you suggested), in my humble understanding that would be wrong because as of today slavery is not haram in Islam."

How does such a view persist among some traditionalist fellow Muslims? Well, the problem may be deeper; it is likely rooted in the legalistic-cum-theological works of some religious scholars. Some scholars and leaders of our time are quite public as well as earnest in defending that Islam has not prohibited slavery. For example, a leading Saudi government cleric and one of the authors of the country's religious curriculum believes Islam advocates slavery.

Shaikh Saleh Al-Fawzan, a member of the Senior Council of Clerics, Saudi Arabia's highest religious body has publicly asserted as late as 2003: "Slavery is a part of Islam. ... Slavery is part of jihad, and jihad will remain as long there is Islam."  He even labeled anyone who disagrees an "infidel". [World Net Daily, 2003] No surprise about such fatwa coming from the heartland of Islam, where Islam stands on its head. Recently a fatwa declared soccer unislamic. [Daily Times Monitor] Just this month Saudi cleric Nasser bin Sliman Al-Omar stated during a TV interview: "People who watch the World Cup will have to answer on Judgment Day." [aired on Al-Majd TV on June 4, 2006; see link] In 2001 Saudi Arabia’s highest religious body banned Pokemon games. Of course, some of these fatwas are funny, ridiculous and frivolous. But also, in Saudi Arabia a 16-year girl can remain in jail for six months and then be deported to her home country, Pakistan, for the "crime" of being raped by a Saudi man. [Khaleej Times] Although such a fatwa from Shaikh al-Fawzan about slavery can be dismissed as isolated the reality is that these religious personalities do have broad cultural impact, and societies must be on guard.

Oliver A Ruebenacker is a convert from Germany, currently living in USA. He has a PhD in Physics. In an article posted at his site, he shares his experience [see the link in the bibliography] from attending a class of a traditionalist teacher in USA. His encounter with the Shafi'ite Shaikh, who taught a course on traditional Islamic rules and regulations (fiqh) from Fall 2004 to Spring 2005, is an interesting read. Ruebenacker also refers to an online Fatwa at Sunnipath, a major site under the guidance of teachers like Shaykh Nuh Ha Mim Keller, which takes the position that sex with slaves is not a matter merely of the past, but it is possible and permissible even today. It explains that "slavery is unlawful (1) in the absence of the Caliph of the Muslims AND (2) unless it results from captives following a lawful war." In other words, if the above two conditions are fulfilled, slavery would still be permissible.

Hedaya, one of the leading Hanafi texts on Islamic laws from the 12th century, authored by al-Marghinani (d. 593 AH/ 1197 AD), asserts that "Ittak, or manumission of slaves, is recommended by the Prophet." [Hedaya, p. 420] 

According to Sayyid Abul Ala Maududi, a leading Islamic personality of the twentieth century, writes in his Qur'anic commentary: "The institution of slavery was discouraged and the owners and other people were enjoined to give financial help to the slaves to earn their freedom under the law of Mukatabat." [Link]

Muslims advocating slavery, such as the Saudi sheikh, are rare. Orthodox Muslims do not suggest that slavery is good, or morally right.  Even the most orthodox Muslim would agree that Prophet Muhammad taught kind treatment of slaves and encouraged their emancipation. Indeed, they would readily condemn the slavery in the West. However, they are still stuck on the position that Islam has not prohibited slavery. In other words, it is not haram in Islam.

As Annemarie Schimmel explains, "Slavery was not abolished by the Koran," but unlike the slavery in the West, ".... only children of slaves or non-Muslim prisoners of war can become slaves." [p. 67] Another words, the only slavery that is not prohibited, as argued and held by the orthodox and traditional Muslims, relates to the captives from the war and those who were already in slavery. No free person could be made a slave or sold into slavery.

Some Muslim apologists consider redundant any discussion as to whether Islam prohibited slavery because slavery is now abolished, due to international treaties. One such author argues: "this is all theoretical discussion. There is no slavery now and it will never come again. Islamic scholars who matter agree to this position. OIC declaration of human rights has made this very explicit in Article 11." Indeed, OIC Declaration of Human Rights has asserted in Article 11 that "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 God the Most-High." One ought to pose the question to OIC's relevant body whether this part of the declaration means slavery would also be prohibited from the Islamic viewpoint. In contrast, the Universal Islamic Declaration of Human Rights states it differently: "Therefore we, as Muslims, who believe ... 
g) in our obligation to establish an Islamic order: ...
iii) wherein slavery and forced labour are abhorred;

OIC's Declaration is emphatic, but still has some ambiguity, and the Universal Islamic Declaration is quite clear that, according to it, Islam abhors slavery, but does not necessarily prohibit it. This ambivalence stems from contemporary minds that have great difficulty admitting slavery is permissible. Yet, their orthodox theological understanding of Islam is such that it has not prohibited slavery. 

That the issue of slavery is theologically still relevant is illustrated by the gap between OIC’s Declaration and the Universal Islamic Declaration of Human Rights. However, one particular area of slavery that is still not theoretical pertains to “sex slavery.” Since in some places it appears that the Qur’an allows sex with “those whom one's right hands possess” [4/an-Nisa’/24-25; 23/al-Mu’minun/6;  24/an-Noor//31-33; 70/al-Ma’arij/30, for examples], the orthodox position is that sex with slave (captive) women is permissible. 

Of course, since free persons can’t be turned into slaves, this issue of sex with concubines pertains only to war captives, or those who were already in slavery at the time of the pertinent Qur’anic revelations.

It is important to point out that the Qur’an was revealed over a period of 23 years and the guidance contained in the Qur’an is dynamic in the sense that it must also be understood in the context of the evolution of a community that was coming out of a tribal social structure, culture and environment and gradually defining and shaping itself in terms of some general norms. That’s why when someone encounters the verse in the Qur’an that disallows prayer (salat) while intoxicated [4:an-Nisa/43] or the verse where some benefits of khamr (intoxicants) are acknowledged [2/al-Baqarah/219], it doesn’t reflect Islam’s normative position about intoxicants, but only transitional position, as Islam was guiding a society where intoxicants were regarded a normal indulgence to where it is regarded as an abomination and prohibited.  

The same principle is also relevant to understand the issue of slavery and sex with slaves (war captives).  Muhammad Asad argues in his commentary of the Qur’an that the verses about “those whom one’s right hand possesses” does not pertain to concubines or sex slaves. Rather, that clause is merely interpretive restatement of the word “spouse”. [Barlas, p. 9] According to this interpretation, these verses do not allow any sex outside marriage. However, the orthodox position is that concubines are allowed. Moreover, as Maududi states "There is no limit to their [slave-girls under custody of one person] numbers.” [Tafsir of the Qur'an by Maulana Maududi, Vol. IV, exegesis of verse 33:52]. Curiously, all those from the orthodoxy who argue or even defend the position that Islam allows concubines, at one level it is merely a polemical position. This author is not aware of any case during the past couple of centuries, where an orthodox scholar or jurisprudent has practiced this flexibility of having concubines. At another level, it is a real issue even in our own time, because sex slavery is one of the most unfortunate, but burgeoning business.

“A US Government report published in 2003, estimates that 800,000-900,000 people worldwide are trafficked across borders each year, the majority to Southeast Asia, Japan, Europe and North America. The trafficking of women has also been recorded (in high numbers) in South Asia and the Middle East and from Latin America into the United States. Since the mid 1990s, with the opening up of the former Soviet Union, the end of the wars in the former Yugoslavia and the opening up of East and South East Asia, there has been an increase in the trafficking in human beings.” [Link]

The issue of concubines or sex-slaves in the context of marriage and sex are as convoluted in Islamic orthodoxy as the issue of slavery in general. Such indulgent understanding about permissible sex with female slaves has caused the Muslim societies to experience harem for the rich and powerful. Although sex slavery, the primary type of slavery in our time, deserves separate treatment, for the specific scope of this essay, it is treated as slavery in a broad sense and our observations and analysis about slavery vis-à-vis Islam applies to all forms of slavery. [Also see, Modern Slavery; Sex Slavery]

How did the Prophet's Abolitionist Track get sidetracked?

Earlier we mentioned the Three-fifths Clause. Well, it seems that the orthodox Islamic law had something similar to the Three-fifths Clause. It can be called the One-half Rule. Notably, this rule remains buried in the legal compendiums unknown to even most Muslims, unlike the Three-fifths Clause that was enshrined in the US Constitution. However, in secular laws, when there are legal changes, domestically on the basis of constitutions and internationally on the basis of treaties, the ideas and attitude of the society also generally and gradually change. However, when such clauses or rules are accepted as religious precepts, where religious laws in their totality are also erroneously believed to be absolute and immutable, it remains a concern. Such theological constructs can make the believers either tolerant of slavery or they might not be active participants in defending the fundamental human dignity, either during their contemporary time frame or in the future.

The primary reason in my view why the Prophet's abolitionist track got sidetracked is the development of the legalistic bent among Muslims. Let us explore the issue here some more.

Freedom and choice are the first-order conditions of Islam. [Farooq_1]. The creation of human beings as a new species on this earth happened because God wanted to create a being endowed with the freedom and choice, unlike the angels, who are good and obedient to God by their nature. That's according to Islamic faith. Thus, enslavement or slavery stands in stark contradiction with the first-order conditions of Islam.

Slavery was an institution inherited from the past and it existed as an ongoing condition during the earliest periods the Prophet Muhammad. When Islam invited the humanity back to the original and pristine teachings of God, it duly upheld the fundamental dignity of human beings. Arguably, slavery was not categorically prohibited by Islam, as it has prohibited intoxicants, adultery or pork. This is the orthodox, but an erroneous position in my view. However, there is no question that Islam revolutionized the conditions of slavery and set the institution on the path of abolition. It even set a permanent fund as part of Zakah, one of the five ritual pillars of Islam, specifically designated for securing freedom of those who are in bondage/slavery.

In ancient Arabia, slaves did not have any right. They could be treated in any way the owners liked. Abusing or even killing a slave was within the recognized privileges of the owning class. Once into slavery, always in slavery; even down the generations.

The guidance of the Qur'an and the leadership of Prophet Muhammad revolutionized the contemporary society by defining and establishing certain laws and parameters for the slaves, elevated their human dignity even as slaves, and put on motion a movement toward freedom for the existing slaves. Every owner was required to give his slave a contractual option to work toward earning emancipation. Enslavement of free people became prohibited, except captivity due to warfare. Even in case of these war captives and slaves, general incentives as well as exhortation facilitated an environment for freeing the slaves. One part of obligatory Zakah was permanently allocated for freeing people from slavery or bondage. The Prophet taught that freeing people was such a noble virtue that it can help people in their salvation from God. Some war captives (who could have been turned into slaves) were given the option of emancipation, if they could offer literacy to a number of people from the nascent Muslim community in Madinah. Freeing people from bondage was presented by the Prophet as an important way to expiate for sins. Freeing slaves was established as a requisite recourse, if they were beaten, slapped or abused.

Narrated Abu Musa Al-Ash'ari: "The Prophet said, "Give food to the hungry, pay a visit to the sick and free those in bondage." [Sahih al-Bukhari, Volume 7, Book 65, # 286]

Narrated Asma: "No doubt the Prophet ordered people to manumit slaves during the solar eclipse." [Sahih al-Bukhari, Volume 2, Book 18, # 163]

'Abdullah b. 'Umar reported that 'Umar b. Khattab asked the Messenger of Allah (s) as he was at ji'rana (a town near Mecca) on his way back from Ta'if: Messenger of Allah, I had taken a vow during the days of Ignorance that I would observe I'tikaf for one day in the Sacred Mosque. So what is your opinion? He said: Go and observe I'tikaf for a day. And Allah's Messenger (s) gave him a slave girl out of the one-fifth (of the spoils of war meant for the Holy Prophet). And when Allah's Messenger (s) set the war prisoners free. 'Umar b. Khattab heard their voice as they were saying: Allah's Messenger (s) has set us free. He (Hadrat 'Umar) said: What is this? They said: Allah's Messenger (s) has set free the prisoners of war (which had fallen to the lot of people). Thereupon he (Hadrat 'Umar) said: Abdullah, go to that slave-girl and set her free. [Sahih Muslim, #4074]

Zadhan reported that Ibn Umar called his slave and he found the marks (of beating) upon his back. He said to him: I have caused you pain. He said: No. But he (Ibn Umar) said: You are free. He then took hold of something from the earth and said: There is no reward for me even to the weight equal to it. I heard Allah's Messenger (s) as saying: He who beats a slave without cognizable offence of his or slaps him, then expiation for it is that he should set him free. [Sahih Muslim, # 4079]

Abu Mas'ud reported that he had been beating his slave and he had been saying: "I seek refuge with Allah, but he continued beating him, whereupon he said: I seek refuge with Allah's Messenger, and he spared him. Thereupon Allah's Messenger (s) said: By Allah, God has more dominance over you than you have over him (the slave). He said that he set him free. This hadith has been narrated on the authority of Shu'ba with the same chain of transmitters, but made no mention of (these words) of his: I seek refuge with Allah, I seek refuge with Allah's Messenger (s). [Sahih Muslim, # 4089]

Abu Huraira reported Allah's Messenger (s) as saying: "When the slave of anyone amongst you prepares food for him and he serves him after having sat close to (and undergoing the hardship of) heat and smoke, he should make him (the slave) sit along with him and make him eat (along with him), and if the food seems to run short, then he should spare some portion for him (from his own share) - (another narrator) Dawud said: "i.e. a morsel or two". 4097. [Sahih Muslim, # 4096]

Narrated Al-Ma'rur: "At Ar-Rabadha I met Abu Dhar who was wearing a cloak, and his slave, too, was wearing a similar one. I asked about the reason for it. He replied, "I abused a person by calling his mother with bad names." The Prophet said to me, 'O Abu Dhar! Did you abuse him by calling his mother with bad names You still have some characteristics of ignorance. Your slaves are your brothers and Allah has put them under your command. So whoever has a brother under his command should feed him of what he eats and dress him of what he wears. Do not ask them (slaves) to do things beyond their capacity (power) and if you do so, then help them.' [Sahih al-Bukhari, Volume 1, Book 2, # 29]

Narrated Anas: "The Prophet said, 'None of you will have faith till he wishes for his (Muslim) brother what he likes for himself.' [Sahih Bukhari, Volume 1, Book 2, # 12]

Notably, the Prophet elevated the slaves as the brothers (part of the same fraternity) and admonished (as in the preceding hadith) that no one is a believer unless he wishes for his brother what he likes for himself. The result of all these aspects was that a movement started where the earliest generation of Muslims during the time of the Prophet started freeing their slaves and honoring the laws and parameters set by Islam about the slaves. Within the lifetime of the Prophet, former slaves, accepted in the fraternity in full, were taking the position of honor as a caller of prayer (muazzin) at the Mosque of the Prophet and sons of former slaves were commanding military expeditions, in which Prophet's companions from the former nobility and aristocracy were included as soldiers. 

We still haven't dealt with the pertinent verses in the Qur'an. However, the ethos of the all the above narrations from the Prophet can be summed up in one terse command from the Prophet: "Set free the slaves (raqaba)..." [Musnad Ahmad, #18672]

The orthodoxy erroneously argues that the Prophet has never specifically and categorically prohibited slavery. However, this is based on the notion that they can't find the word "haram" or "prohibited" in case of slavery. This is an outrageous error because all the things that are considered "prohibited" (haram) or "obligatory" (fard) are not based on the explicit presence of such expression in textual sources (i.e., the Qur'an and Sunnah). Indeed, the religious scholars and jurisprudents have made prohibited or turned into requirements so many things based on the weakest of hadiths or even misapplications of qiyas (as illustrated in the case of Kafa' - equality in marriage). [see Farooq_2] But when it came to asserting the fundamental human dignity by taking the movement of the Prophet for emancipation to its logical conclusion, the Islamic position on slavery was turned on its head.

As I have already pointed out that the discourse about slavery pertains to only those who are already in slavery, because turning any free persons into a slave (through trade) is regarded prohibited. Several hadiths in Sahih al-Bukhari and other collections, similar to the one below and upheld by the scholars, indicate that God will be an adversary on the Day of Judgment against those who sell free persons into slavery. 

Narrated Abu Huraira: in Sahih al-Bukhari. Volume 3, Book 34, Number 430:

The Prophet said, "Allah says, 'I will be against three persons on the Day of Resurrection:

1. One who makes a covenant in My Name, but he proves treacherous.
2. One who sells a free person (as a slave) and eats the price,
3. And one who employs a laborer and gets the full work done by him but does not pay him his wages."

Based on hadith like the above, the scholars and jurisprudents apparently hold the opinion that any trade involving free persons is prohibited. So, the issue pertains only to those who are already in slavery. Notably, the above hadith doesn't say that selling a free person is prohibited. The rule about prohibition here is based on the fact that Allah on the Day of Judgment will be an adversary of those who sell a free person in slavery. Another word, whether something is prohibited or not does not require that the word or expression must be tantamount to explicit prohibition. If the above hadith is adequate as a basis for prohibition of selling free persons, several hadiths with specific command, such as "Set free the slaves (raqaba)..." [Musnad Ahmad, #18672], has much stronger basis for prohibition of slavery in general. 

Yet, instead of upholding the fundamental dignity and sanctity of human beings and accepting as well as carrying on the movement of emancipation as the norm, the subsequent generations reconciled themselves with the existence of slavery as an ongoing institution. By the time the orthodox schools of Islam were formalized, the institution of slavery was treated as normal and qiyas was being applied to further normalize the institutions. One can observe leading Islamic jurisprudents dealing with the issue of slaves as commodities. For example, Imam Shafi'i opines about the determination of blood-money of the slave as following.

Ibn Shihab said: Others have added: "[The price of the slave] shall be estimated in the same manner as that of a commodity. ...

He asked: What is the proof?

[Shafi] replied: "It is an analogy [based on the case] of the criminal offence committed by a freeman.

He said: [The compensation for the slave] differs from the diya of the freeman, because the latter is specified, while the former is equal to his price, just as commodities--such as camels, beans, beasts and the like--are price." [al-Shafi's Risala: p. 321]

It is noticeable how casually the issues pertaining to slaves are cast in terms of commodities based on qiyas. Such dehumanization of slaves is most regrettable, because it is also inconsistent with the perspective of the Qur'an and the Prophet that has ennobled and sanctified human life. A more egregious application of the laws pertaining to slaves were formulated based on a qiyas of a mathematical ratio of ONE-HALF.

Variations of the One-half Rule can be found in almost all orthodox schools of fiqh. According to Imam Malik:

Yahya related to me from Malik from Ibn Shihab that he was asked about the hadd of the slave for wine. He said, "I heard that he has half the hadd of a freeman for drinking wine. Umar ibn al-Khattab, Uthman ibn Affan, and Abdullah ibn Umar flogged their slaves with half of the hadd of a freeman when they drank wine." [Muwatta, Kitab al-Ashribah, #1559]

Here we take a closer and more detailed look at the Hanafi position, once again, from al-Marghinani's Hedaya.

Slaves can marry up to two only:
"It is lawful for a freeman to marry four wives, whether free or slaves; ... It is unlawful for a man who is a slave to marry more than two women; Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent. -- The argument of our doctors, in this case, is that slavery operates to the privation of one half of the natural privileges and enjoyments, and the legality of four wives in marriage being of this description, it follows that the privilege of a slave extends to the possession of two wives only, in order that the dignity of freedom may be duly supported." [p. 88]

For slaves, only two divorce pronouncements:
"The utmost number of divorces, with respect to a female slave, is two, whether her husband be a slave or free; and the same with respect to a free woman is three. -- Shafei has said that, in the number of divorces, respect to be had to the state of the man; that is to say, if the husband be free he is empowered to pronounce three divorces although his wife be a slave; whereas, if he be a slave, he is not authorized to give more than two divorces, although his wife should be a free woman, the prophet having said, "In divorce the state of the husband is to be regarded, and in iddat that of the wife:" -- The divorces of a female slave are two and her iddat is two courses". Secondly, it is the woman who is subject of legality, and this legality entitles her to benefits; but slavery entitles only to half of these benefits; hence it follows that, the divorce of a female slave should not exceed one and a half, but such subdivision of it being impossible, her divorces extend to two. -- As to the saying of the prophet quote by Shafei, that "in divorce the state of the husband is to be regarded," it means no more than that the efficiency of divorce proceeds from him. [p. 212]

Of course, two divorces for slaves do not constitute one-half of the three divorces as norms for divorces by free men. But as clearly indicated, the same One-half Rule was invoked. So, where does this One-half Rule come from? It is from a specific context in the Qur'an.

If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And Allah hath full knowledge about your faith. Ye are one from another: Wed them with the leave of their owners, and give them their dowers, according to what is reasonable: They should be chaste, not lustful, nor taking paramours: when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but it is better for you that ye practise self-restraint. And Allah is Oft-forgiving, Most Merciful. [4/an-Nisa/25]

So, in case of punishment for adultery, the female slaves are to receive punishment that is one-half of what is due to a free married woman. Is there any indication in this verse or elsewhere in the Qur'an, or in Prophetic narrations that this is a general rule to be applied as a norm for all laws pertaining to the slaves? Of course not. Instead of moving toward gradual abolition of slavery, in keeping with the Prophetic legacy, more detailed laws were formulated to deal with issues and problems related to slavery, as existence of slavery was taken as normal. It was such an abandonment of the Prophetic legacy that in books of Islamic law, such as Hedaya, almost six centuries after the Prophet, rarely was it mentioned that freeing slaves is a great virtue, and even if it was mentioned, it was never pointed out that the Prophet started a movement toward abolition, or that slavery is a denial of the fundamental dignity and sanctity of humanity, or that any slavery-related provisions in fiqh is merely transitional, until slavery is eliminated from the face of the earth. Indeed, reading through a book six centuries after the Prophet, one might think that the transitional portion of slavery would be mentioned or discussed in past tense, but that's not so. 

If anyone thinks that the orthodox approach to slavery has changed in almost another millennium, an interesting example can be found in the orthodox books about inheritance laws in Islam. Consider the book Islamic Inheritance Law by Dr. Yusuf Ziya Kavakci, a well known Islamic personality, and the resident Islamic Scholar and Spiritual Leader of a major community in Texas, USA. He is a member of ISNA's Majlis (consultative body). His book was published in 1994 in which he discussed several rules, one of which is: "The wala (right of inheriting the emancipated slave) belongs to the emancipating master." [p. 8] Under the section The Beneficiaries of an Estate, he lists: #3 - Asabah relation (male/female) stems from the wala' factor. A manumitter of a slave inherits his/her ex-slave. The agnates of the male manumitter master also are included in this process in case they are absent." [p. 10] Under the section The Impediments of Inheritance, he writes: 

a. Slavery - A slave cannot inherit from his relatives. There is no exception for any kind of slavery status. There are, as we know, full slaveries, like 'qinn' in Arabic and imperfect slaveries, like 'mukatab' and 'mudabbar.' All of the possessions and acquisitions of a slave go to his master. That might lead to allowing a non-relative acquiring from persons who are just third persons. This is against the principle of inheritance rules. However, there is a minority opinion which states that a slave who is partly emancipated may function as an heir and he also may suffer the deprivation (totally or partly) by another heir. [p. 12]

A more recent example and from an even more well known Islamic expert involves Mufti Muhammad Taqi Usmani. He has been a Judge of the Shari'ah Apellate Branch of the Supreme Pakistan since 1982 and a permanent member of the International Islamic Fiqh Academy in Jeddah, an organ of the OIC. He is one of the highest paid members of the Shari'ah advisory board of a good number of Islamic financial institutions around the world. In 2002 he wrote a book "An Introduction to Islamic Finance", published by a prestigious western publisher, Kluwer Law International, Hague. While reading this book, I stumbled on this page and my eyes nearly popped out, as I came across this discussion about slave-trade in illustrating limited liability. In the pattern of slave-ownership and trade as it prevailed in earlier day, he found the closest example to the limited liability of a joint-stock company. He prefaces his elucidation with the statement that it pertains to matter of the past and closed.

"The example relates to a period of our past history when slavery was in vogue, and slaves were treated as the property of their masters and were freely traded in. Although the institution of slavery with reference to our age is something past and closed, yet the legal principles laid down by our jurists while dealing with various questions pertaining to the trade of slaves are still beneficial to a student of Islamic jurisprudence." [p. 108]

This is of course a modern mufti, as he also serves as a Judge in the Supreme Court of Pakistan. Readers should note how carefully the venerable Mufti has worded "something past and closed." Does that mean Mufti Usmani thinks slavery is prohibited in Islam or that's the norm of Islam? Well, one won't find any answer to that question in his elucidation. He should be posed this question upfront and it would be interesting to learn about his position on slavery as a religious jurist. 

It just happens that I did contact al-Balagh, an Islamic e-magazine, that prominently features the works of Mufti Usmani, if Mufti Usmani had any public stated fatwa on slavery. I have been sent a pdf document with handwritten fatwa of him. The document is with the official seal of Darul Ifta, Darul Uloom, Karachi, of which Mufti Taqi Usmani is the Vice President. The content of the document is as following:

Yes, Hazrat Mufti Taqi Usmani has discussed this topic elaborately in his book 'Takmilah Fathulmulhim' (volume no. 1, page no. 264). His discussion could be summarized as follows:

'Principally the enslavement of prisoners captured during a war fought following Islamic teachings is permissible at the Imam's (leader of the Muslims) discretion. However, it should be clear that its ruling is that it is merely permissible, not incumbent or compulsory. Further, its permissibility, too, is restricted to such a situation where there has been no agreement between the Muslims and their enemies not to enslave prisoners of war. And if there is any such agreement, then it is binding on all the parties to abide by this agreement. Therefore, since an international agreement exists between nearly all nations and countries of the world, including most Muslim countries, not allowing the enslavement of such prisoners, it is also necessary for the Muslim nations to abide by this agreement. Thus, in light of this agreement, it would not be permissible for them to enslave such prisoners of war. On the other hand, if any country rescinds this agreement, or has never been a part of this agreement, it is not impermissible for it to enslave such prisoners of war.' [And Allah knows best, signed Ibrahim Essa, Darul Ifta, Darul Uloom, Karachi; 10/7/1427 AH; Fatwa 900-43]

It is obvious from the above document that what is being stated as permissible, is in the limited context of prisoners of war and if there is no reciprocal agreement of exchange of prisoner. However, the above document doesn't state any normative position that in general Islam is against slavery and that except in that limited context, Islam prohibits slavery. That in certain situation, consuming pork is permissible is clearly mentioned in the same verse, where it is categorically prohibited [The Qur'an: 5:3]. However, when Muslim scholars deal with the issue of pork, the emphasis or focus is generally not on that in certain situations it is permissible, but on the normative position that Islam prohibits eating pork. In contrast, when the issue of slavery is dealt with, the focus seems to be on the context when it is conditionally permissible, instead of the normative position that Islam prohibits slavery. Mufti Usmani is correct that there is international agreement to have exchange of prisoners after the war, instead of turning it into slavery. Even he also mentions that it is neither mandated nor recommended that captives of war have to be turned into slaves. In the Qur'an there are certain verses [47/Muhammad/4; further discussed later in this essay] that do not even leave an option that Muslims can turn the war captives into slaves. Thus, Muft Usmani's position, a typical orthodox position, falls short of stating the Islamic norm about slavery.

I won't go into the details of how he illustrated the limited liability concept through the example of practices in slave-ownership and trade and how effective was the illustration. However, it is quite interesting that an eminent scholar and jurist like him could not find another example to illustrate limited liability, and even at that, without making any clarifying statement about the normative position of Islam regarding slavery. Indeed, he makes an interesting comment at the beginning of the discussion. "Here I should like to cite another example with advantage, which is the closest example to the limited liability ..." [p. 68] I don't really understand the meaning of the expression "with advantage" here, but from reading his elucidation, one might have an impression that there is after all a redeeming value of slavery. Who knows, maybe we should do a more thorough research in the history of ideas, if indeed the idea of limited liability has benefited from legal principles laid down by Islamic jurists about slave trade! 

As I have mentioned above, somehow Islamic orthodoxy can't disengage itself from slavery and somehow it crops up in the orthodox discourse. Similar to Dr. Kavakci, in the work of Mufti Usmani as well, there is no mention or clarification whatsoever that even in Islamic orthodoxy, freedom is the norm, and slavery pertains only to war captives, or that slavery is a matter of the past (as it should have been), or that manumission of slavery is a virtue in Islam. Reading this twentieth century (actually, 1994, so close to twenty-first century) book by Dr. Kavakci, one would have the distinct impression that in orthodox Islamic minds and books, slavery is an ongoing reality. Mufti Usmani does mention that it is a matter of the past, but does not even bother to deal with the issue whether it is still permissible or not. Such books are merely "unadulterated" continuation of the classical Islamic laws, views and perspectives and evolved into an entrenched orthodoxy with a legalistic and literalist bent.

The above two examples are from scholars who are primarily from the background of madrasah education. The next example is from an Islamic scholar who is primarily from modern academic background. However, it seems when it comes to the issue of slavery, the orthodox mindset is deeply entrenched. Dr. Imran Ahsan Khan Nyazee is an associate professor at the Faculty of Shari'ah & Law, International Islamic University, Islamabad and an author of several highly regarded books on Islamic law and jurisprudence. In one of his works, while explaining the general concept of mandub (permissible/recommended, but non-binding), Nyazee uses the example that in case of transactions or contracts, writing down is permissible or recommended, but not binding. Then, he uses the rights of slave owners as an example and an argument.

The command requires the agreement of mukatabah with the slave (in which the slave pays for his freedom in installments). It is, however, not binding on the owner. This is inferred from the established principle of the shari’ah than an owner of property is free to dispose of it as he likes. It is not permitted to coerce him into a specific transaction, unless there is a legal necessity for doing so.” [Nyazee, p. 66]

This is a fundamental misapplication of an otherwise well-known principle of Islam. Yes, Islam recognizes the right of ownership. However, it is not absolute and it does not apply to owning human beings, because it contradicts Islam's affirmation of fundamental human dignity. Human beings are not commodities and they must not be treated as such. The Prophet Muhammad did not introduce slavery; rather, he faced up to a society where slavery was normal and he put the society on a track of abolition of the malady. When it comes to reconciling the right of ownership and the fundamental human dignity, the verdict must be in favor of the latter and, though not the orthodox law or mind, Islam does affirm fundamental human dignity.

Taking the reduced punishment of female slaves in case of adultery and applying it to the domain of marriage, divorce, etc. of slaves is an illustrative case of qiyas (analogical reasoning), one of the four sources of Islamic laws/jurisprudence, gone haywire. Notably, there were (and still are) dissenting voices. Imam Malik (d. 179 AH) challenged and rejected such misapplied qiyas in case of the slaves.

Malik maintains that it is lawful for a slave to marry as many women as a freeman, he holding it as a principle, that a slave, with respect to marriage, is in every particular the same as a free person, insomuch that (according to him) a slave is authorized to marry without his proprietor's consent. [Hedaya, p. 88]

Imam Malik's legal viewpoint is commendable that except what has been specified in the Qur'an, there is no basis for such analogical extrapolation as One-Half Rule in regard to the slaves. However, all orthodox schools, including Maliki, dealt with slavery in the jurisprudence as something normal and ongoing.

It is worth mentioning that like in the case of Kafa' [equality in marriage, see Farooq_2], orthodox positions have gone to the furthest extent to find even the weakest hadith and when no textual source has been found, qiyas has been used to draw overstretched conclusions and laws. Please refer to my essay "Islamic Law and the Use and Abuse of Hadith" [Farooq_3] for other examples where unwarranted conclusions have been drawn and in some cases, such misapplications have seriously undermined the role and position of women in Muslim societies.

We have already cited hadiths from the Prophet, for example, the one from Musnad Ahmad, where the Prophet has clearly commanded: "Set free the slaves (raqaba) ...". [#18672]. The Qur'an also exhorts believers to embrace the virtue of human dignity and freeing people from slavery. 

In the following verses, the Qur'an offers freeing of slaves as expiation of certain transgressions, small and big.

Never should a believer kill a believer; but (if it so happens) by mistake, (Compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased's family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have treaty of Mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running: by way of repentance to God: for God hath all knowledge and all wisdom. [4/an-Nisa/92]

God will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth God make clear to you His signs, that ye may be grateful.  [5/al-Maida/89]

But those who divorce their wives by Zihar, then wish to go back on the words they uttered, (It is ordained that such a one) should free a slave before they touch each other: Thus are ye admonished to perform: and God is well-acquainted with (all) that ye do." [58al-Mujadilah/3]

The above verses can be treated as encouragement toward emancipating slaves. One of the verses that stands in distinction as a much higher call is the following verse, where, notably, exhortation for freeing slaves is listed before two of the obligatory (fard) duties (pillars) of Islam: prayer (salat) and almsgiving (zakat). 

It is not righteousness that ye turn your faces Towards east or West; but it is righteousness to believe in God and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the God-fearing. [2/al-Baqarah/177]

The Chapter al-Balad in the Qur'an is particularly relevant for the issue of freedom and slavery. This beautiful Surah begins with the emphatic affirmation of the fundamental freedom of human beings and directly addresses the Prophet, reminding him that he himself is a free person. 

I do call to witness this City;-
And thou are a FREE PERSON (hillun) of this City;-
And (the mystic ties of) parent and child;-
Verily We have created man into toil and struggle. [90/al-Balad/1-4]

The climax in the above Surah comes in the following verses, where it is mentioned that God has shown the humanity two highways, representing the truth and falsehood, right and wrong, virtue and vice, good and evil. However, one of these paths is rather steep and people have a tendency to indulge and not to step up to higher standards. 

"And (have We not) shown him the two highways?
But he has made no effort on the path that is steep (Aqaba).
And what will explain the Aqaba?
(It is:) freeing the bondsman/slave [raqaba]" [90/al-Balad/10-13]

After mentioning "freeing the slave", Surah al-Balad continues with other things representing that steep path from which people so easily shy away.

Or the giving of food in a day of privation;
To the orphan with claims of relationship;
Or to the indigent (down) in the dust.

Then will he be of those who believe, and enjoin patience, (constancy, and self-restraint), and enjoin deeds of kindness and compassion.

Such are the Companions of the Right Hand.

But those who reject Our Signs, they are the (unhappy) Companions of the Left Hand.

On them will be Fire vaulted over (all round).
[90/al-Balad/20]

The message of the Qur'an here is categorical. God has shown the two highways. One of those paths is steep and it involves freeing those in slavery, taking care of those who are in hunger, of all the trusts involving orphans (weak, disadvantages and often powerless), and of the needy, destitute or deprived. The Surah (chapter) ends with the declaration: "Then will he be of those who believe ... Such are the companions of the Right Hand (indicating those who would receive salvation on the Day of Judgment). There is also stern warning against those who would not take the steep path and, instead, will choose the easy path that does not require struggle or sacrifice. As the Prophet has taught: "Hell lies hidden behind evil (worldly desires) and paradise is screened behind hard work/struggle." [Sahih al-Bukhari, Vol. 8, #494]

These verses were revealed in the Makkah period of the Prophet's life, which affirmed the Islamic norm for the fundamental human dignity and the the highway of salvation, involving freeing those in bondage, was shown. There is another place in the Qur'an, coinciding with the Madinian period, where the issue of war-captives was dealt with.

So when you meet in battle those who disbelieve, then smite the necks until when you have overcome them, then make (them) prisoners, and afterwards either set them free as a favor or let them ransom (themselves) until the war terminates. That (shall be so); and if Allah had pleased He would certainly have exacted what is due from them, but that He may try some of you by means of others; and (as for) those who are slain in the way of Allah, He will by no means allow their deeds to perish. [47/Muhammad/4]

As Muslims were gradually overcoming the onslaught of those forces that wanted eradication of Islam and Muslims, they had to contend with the issue of war-captives. The above verse leaves basically two options for Muslims to deal with the war-captives: either set them free unconditionally as a gesture of grace, or let them ransom themselves. The latter position involves exchange of prisoners/captives. While it is within the context of a comprehensive policy and strategy to weaken and subdue the aggressors as well as minimizing the potential for future wars, this verse leaves no option for turning the war captives into slaves. This also fits the policy of the Prophet to find various ways, including offering the some of the educated captives an option to ransom themselves by imparting literacy to some of the illiterate among the Muslims. Therefore, the Qur'anic position is not that unclear, particularly when taken all the verses pertinent to this subject are taken into consideration.

Wrong Question, Wrong Answer

Unfortunately, in keeping with the classical sources, the traditionalist orthodoxy continues to suggest or insist that slavery has not been prohibited by Islam. Much of the confusion arises from the fact that slavery involved human beings and the early Islamic society had to go through a slow transition process to secure an environment of freedom of all those in bondage. During this transitional stage, parallel to prohibition of turning free persons into slaves, Islam laid out clear guidelines defining the rights and status of those still in slavery, not so that such rights and status would be used as an excuse to perpetuate slavery, but to gradually carry the phasing out of slavery to its ultimate conclusion: its eradication.

It is unfortunate that many still won't, or feel like that they can't, reach the conclusion that those Qur'anic verses are absolutely clear about Islamic position on slavery: IT HAS NO PLACE IN ISLAM. Of course, Islam takes it further. It binds its followers to a permanent campaign to eradicate slavery.

One would wonder that the same scholars and jurisprudents who have gone to an utmost extent sometimes to find even the weakest hadith (or even without any textual evidence) to draw strong, bold and even outrageous conclusions, they seem to engage in endless excuses and arguments, when it comes to slavery and affirming the fundamental dignity and sanctity of human being. This is another pitiful example of legalism, where the goal or intent (maqasid) of Islam is overlooked, neglected, compromised or even sacrificed.

It is the legalistic approach that has misled the scholars and jurisprudents on this issue. Based on the hadiths like in Sahih al-Bukhari 430, cited above, where it is mentioned that Allah will be against anyone "who sells a free person (as a slave) and eats the price," the scholars have arrived at the agreement that turning free persons into slaves is forbidden. Thus, this IS the norm, affirming the fundamental dignity of human beings. However, instead of accepting this as a norm, and treating the existing slavery as a transitional phase until it is uprooted, the scholars and jurisprudents got entrapped in their legalism.

Does Islam prohibit slavery? This is a wrong question. The traditional way of answering the question that Islam does not is also wrong. The crux of the issue is not whether there is an explicit text or evidence that Islam prohibits slavery, (even though it can be legitimately argued that all the prohibitions or restrictions by the scholars are not based on any explicit text or evidence as such), the real issue is whether Islam upholds the fundamental dignity and sanctity of human beings and thus affirms freedom as the first (or one of the first)-order condition(s) in Islam. The Qur'an definitely does and the Prophet's life as well as exhortation demands an abolitionist view and position that was lost in the maze of orthodox legalism. 

Conclusion

If the scholars of Islam approach the issue from this angle of fundamental human dignity, I believe the correct and only answer they would be able to offer is that Islam does prohibit slavery, because Islam upholds the fundamental human dignity and freedom/choice is a first-order condition of Islam. That's consistent with the Qur'anic perspective about the "steep path", the Prophetic COMMAND "Set free the slaves," the Prophetic exhortations to find ways to free slaves, and the allocation of a portion of zakah as a permanent fund for emancipation of those in slavery.

Yes, international treaties have formally abolished slavery, even though, as pointed out earlier, slavery-like condition is not completely gone. For Muslims, this is not only an appreciable development, but also this is consistent with what Islam and the Prophet Muhammad wanted, because Islam upholds the fundamental human dignity. 

I can't be shocked at Three-fifths Clause and be oblivious to the One-half Rule. Human beings must be embraced in their full human dignity, not one-half. As a Muslim, I embrace every human being in his or her full human dignity. If any Muslim believes or claims that Islam doesn't prohibit slavery, let him also answer whether Islam upholds the fundamental human dignity or not. Maybe then, rising above legalism, the right answer will be embraced that Islam does uphold fundamental human dignity.

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Bibliography

Al-Marginani. Hedaya, Trans. by Charles Hamilton [Karachi, Pakistan: Darul Ishaat, 1989]

Al-Shafi'i. Al-Shafi'i's Risala: Treatise on the Foundations of Islamic Jurisprudence [translated by Majid Khadduri; Cambridge, UK: The Islamic Texts Society, 2nd Edition, 1987]

Kevin Bales. Disposable People: New Slavery in the Global Economy [University of California Press, 2000]

Asma Barlas. “The Family and Marriage: Muslims in the 21^st Century,” Speech at Los Angeles, CA, April 16, 2005

Susan L. Boyd. "A Look Into the Constitutional Understanding of Slavery," Res Publica, v6n1
April 1995

CNN. "Saudi bans Pokemon," March 26, 2001.

Daily Times Monitor. "Saudi clerics declare football un-Islamic," August 28, 2005.

Mohammad Omar Farooq_1. "Freedom and Choice: The First-Order Condition of Islam," Message International [July 2004]

Mohammad Omar Farooq_2. "Qiyas (Analogical Reasoning) and Some Problematic Issues in Islamic law" [Unpublished, June 2006]

Mohammad Omar Farooq _3. "Islamic Law and the Use and Abuse of Hadith" [unpublished; June 2006]

Yusuf Ziya Kavakci. Islamic Inheritance Law [Dallas, TX: Al-Huda Publications, 1994]

Khaleej Times. "Sixteen-year-old Pak girl raped, jailed in Saudi Arabia," 24 April 2006.

Imran Ahsan Khan Nyazee. Islamic Jurisprudence (Usul al-Fiqh) (Islamabad, Pakistan, Islamic Research Institute, 2000).

PBS. Dred Scott's fight for freedom 1846 - 1857 [http://www.pbs.org/wgbh/aia/part4/4p2932.html] 

David Perlmutter. “Sex Slavery: International Steps are Needed to Curb What Has Become A Global Scourge,” Gazette, Montreal July 10, 2001

Oliver A Ruebenacker. "Traditionalist View on Sex Slavery" [online] 

Annemarie Schimmel. Islam: An Introduction [State University of New York Press, 1992]

Muhammad Taqi USMANI. An Introduction to Islamic Finance [The Hague: Kluwer Law International, 2002]

World Net Daily. "Saudi sheik: 'Slavery is a part of Islam'," June 25, 2006

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