In Summer 2023, the TraSIS project organised a joint conference with the Bonn Center for Dependency and Slavery Studies (BCDSS) in the picturesque Swiss lakeside town of Murtensee. Some of our guests generously agreed to contribute a blog post in which they discuss one of the sources they presented on at the conference. In the third post of this series, Jonathan AC Brown, Chair of Islamic Civilization at Georgetown University, explores the sale of non-Muslim children into slavery in Islamic law.

We recommend that readers explore our other blog contributions which are linked here.

Questions Raised in South Asia: Selling One’s Children and the Shariah

For millennia, one of the ways people entered slavery was as children sold by their families. This seems unthinkable to many today. As the sociologist Georg Simmel (d. 1336/1918) observed, however, our valuation of goods like freedom only makes sense in a context of minimum safety and subsistence.¹ Parents who lacked such basic needs might sell their children if they were threatened, if their family were starving, or if they thought their children stood a better chance of surviving or succeeding as someone else’s slave.

For much of ancient and early medieval history, selling one’s children into slavery was uncontroversial. It was accepted in Roman law well into the second century CE, and even Late Antique Jewish law allowed the sale of daughters.² It was not uncommon in medieval Europe.³Circumstances desperate enough to prompt parents to sell their children as slaves appeared particularly often in South Asia, where it was a well-known recourse for parents during times of famine.

South Asia also offers repeated glimpses of the moral anxiety that formed around the practice. Indians selling their children into slavery due to poverty or hunger was a perennial worry for British authorities after they assumed administrative control in the 1170s/1760s. Before that, it had long been a concern of Muslim rulers in India. As both the British and the Mughal state found, practices born of necessity are difficult to eliminate. The emperor Akbar (d. 1014/1605) could only try to ameliorate the practice by decreeing that those parents who had been forced by poverty to sell their children into slavery could redeem them when their circumstances improved.⁴

Muslim ulama in India also took up this question over the centuries, and their discussions on whether one could sell one’s children into slavery and under what circumstances display the same tensions between defending moral principles and negotiating necessity. Some scholars acceded to allowing selling one’s children during famine, since the Shariah held as a principle that necessity could render permissible things normally prohibited (al-ḍarūrāt tubīḥu al-maḥẓūrāt), such as eating carrion. Most South Asian ulama, however, seem to have found selling one’s children into slavery reprehensible and unsanctionable. The Mughal scholar and historian ʿAbd al-Qādir Badāyūnī (d. 1004/1596) reports how a leading jurist and a fellow favourite in Akbar’s court, Mubārak Nāgūrī (d. 1001/1593), had given a fatwa permitting the sale of one’s children during famine despite this breaking with the main opinion of the dominant Ḥanafī school of law.⁵ Mullā Jīvan of Delhi (d. 1130/1718), a respected Ḥanafī jurist, exegete and judge also close to the Mughal court, notes that there was consensus that free people could not be sold. He admits that some jurists had allowed it during famine, but he considers this license unsubstantiated. Abū Ḥanīfa (d. 150/767) and the founding figures of the Ḥanafī school had never approved of it. At best, allowing the sale of children in any circumstances was a problematic legal fiction indulged in an effort to aid the poor, Jīvan concludes.⁶ As part of their efforts to end the practice, in 1808 concerned British officials asked Muslim jurists working as legal advisors what Islamic law said on the issue of selling children. They replied that no one could enter into slavery by sale, even in times of famine, but only by capture by Muslims in non-Muslim lands.⁷ But was this true?

Buying the Children of Non-Muslims in the Abode of War

Two major sources of slaves in Islamic civilization were non-Muslim captives taken by Muslim armies and non-Muslims captured by Muslim raiders into the Abode of War (dār al-ḥarb), namely non-Muslim, enemy territories. Whether and when such prisoners or captives could be legally enslaved was ultimately a decision made by the Muslim ruler/state. Though it seems impossible to be certain, the single largest means of acquiring slaves in Islamic history was likely not violence but commerce. Muslim merchants either purchased (non-Muslim) slaves brought by non-Muslim slave merchants from outside the Abode of Islam (dār al-islām), or those Muslim merchants traveled into the Abode of War and purchased slaves there.

The legal questions that arose around enslaving captives enjoyed significant attention among Muslim scholars, purchasing slaves in the Abode of War much less. Whether Muslim merchants traveling into non-Muslim lands (or even encountering non-Muslim merchants coming into the Abode of Islam) could buy their children or other family members from them is a subset of this larger question, but it crystallises the priorities at stake for the scholars who formulated Islamic law and the tensions they had to address.

The purchase of children from non-Muslims in the Abode of War was no mere academic question. Broadly defined, Turkic and Slavic peoples from the Central Asian and Ponto-Caspian steppe were the major sources of slaves for Islamic civilization for many centuries. And as far back as the fourth/tenth century, Muslim travellers and geographers with first-hand experience in these areas noted some Slavs and pagan (i.e., non-Jewish or Christian) Khazars sometimes sold their children into slavery to pay debts or fines.⁸

Nor was this only an exotic practice in far off lands. During ʿAmr b. al-ʿĀṣ’ (d. 42–3/662–4) conquest of North Africa in the 10s/630s, accepting the sale of children from conquered populations was part of some surrender agreements (though, as we’ll see, major Muslim jurists would debate the legality of such sales).

Prior to further discussion, we must first note some important principles regarding slavery (riqq) in the Shariah. First, it is prohibited to enslave free people. The principal categories of people who could not be enslaved were Muslims, non-Muslims living under Muslim rule (ahl al-dhimma), and slaves who had already been freed.

Lurking behind the prohibition on “enslaving free people,” however, are fundamental questions of how to view the notions of freedom and slavery beyond the jurisdiction of the Abode of Islam. There lurk even more fascinating questions about, on the one hand, how the Shariah imagines the extension of its normative assertions beyond those borders and, on the other, how much moral discretion it grants non-Muslim normative systems. The Quran, the Sunna and generations of Muslim scholars enshrined the rights of followers of previous revelations to engage in acts and rituals that were considered morally and theologically abhorrent after the rise of Islam⁹. Whether worshipping Jesus, drinking wine, incestuous marriage (as per Zoroastrianism) or sati (widow self-immolation in Hinduism), such practices were protected because Muslim states understood their relationship to non-Muslim communities under their rule to be contractual. And at the core of those contracts was the protection of those communities’ religious rites.¹⁰ This contractual protection was extended beyond those groups named in the Quran as having received prior revelation, such as Christians and Jews, whose original revealed texts were deemed worthy of respect even if Muslims believed they had been altered or misread. But how far were Muslim scholars willing to go in recognising the validity of non-Muslim practices done outside the Abode of Islam?

It is well known that Islam did not establish a new regime of slavery, but only affirmed an existing institution, while altering significant elements of it. There was no debate among the ulama, as far as I know, about the legitimacy of slavery globally. The Prophetic Hadith telling Salmān al-Fārisī (d. 35/656) to negotiate his gradual self-purchase (kātib) with his owner is instructive. As the Andalusian jurist Ibn Baṭṭāl (d. 449/1057) explains, the Prophet affirming that Salmān was still a slave despite acknowledging that he had been “wronged” by the merchants who sold him into slavery on his way to Arabia shows that the de facto ownership of slaves by non-Muslims prior to Islam and, by analogy, in the Abode of War is entirely valid and legitimate. Moreover, other Hadiths affirmed that freeing slaves was a good deed and meaningful even before Islam.¹¹

Whether non-Muslims in the Abode of War capturing and enslaving one another constituted enslaving and selling “free people” seems to have struck Muslim jurists as too vague a question to tackle in depth.¹² But there was a relevant, fixed point of agreement that was not vague. All schools of law acknowledge a Prophetic Hadith (which also appears as a ruling issued by the Caliph ʿUmar [d. 23/644] and al-Ḥasan al-Baṣrī [d. 110/728]) stating, “Whosoever owns a close relative (dhā raḥim), that close relative is free.” Interpretations of this Hadith differ slightly between schools of law, but all agree that it applies at the very least to the parent-child relationship and that it is the fact of the person passing into that relative’s possession that renders them automatically free.¹³ This ruling—and how far it extended—was crucial for the question of whether one could purchase the children of non-Muslim parents from them.

The tradition offered three broad answers to this question. The first was simple and most visible in a strain within the Ḥanafī school of law: Muslims cannot buy the children of non-Muslims in the Abode of War because no one can own their own children. Hence, their (non-Muslim) parents cannot sell them. As communicated by the Central Asian Ḥanafī scholar al-Walwālījī (d. circa 540/1145) (though he does not ultimately agree), a Muslim merchant voyaging into the Abode of War could not buy a non-Muslim’s child from their parents because the instant the child passed into the parent’s ownership it would be free and thus unsellable. It is also the standard Ḥanafī position that one cannot buy the children of non-Muslims who enter into the Abode of Islam with safe conduct (amān).¹⁴

The second position was the polar opposite and is best represented by the Mālikī school of law: there is no problem with buying non-Muslim slaves offered by non-Muslims in the Abode of War, even if one is buying children from their parents. Simply put, these peoples enjoy no inviolable status (ḥurma). Were Muslims at war with them, they could be taken as slaves. So purchasing them presents no problem. This did not apply, however, to non-Muslims with whom Muslims had a treaty arrangement (hudna, ṣulḥ), since their freedom was guaranteed by such arrangements. This position is affirmed by the Fez jurist al-Ruhūnī (d. 1230/1815), citing the Meccan Mālikī al-Ḥaṭṭāb (d. 954/1547), Ibn Rushd al-Jadd (d. 520/1126) as well as earlier figures in the school, all the way back to Mālik (d. 179/795) himself.¹⁵ Mālik had not approved of receiving Nubian slaves as part of the baqt because treaty agreements protected parties against enslavement. But on buying Nubian women and children from their families, Mālik’s famous Egyptian contemporary, al-Layth b. Saʿd, stated, “I see nothing wrong with Muslims buying them from them.” An older Syrian contemporary, al-Awzāʿī (d. 157/774), had also not objected because “our laws do not apply to them.” Presumably here he was referring here to the impossibility of a parent selling their own child. It is important to note that other prominent contemporaries of Mālik, such as the Kufan Sufyān al-Thawrī (d. 161/778), also disliked (yakrahūna) the Nubian transaction.¹⁶ But, like Mālik, this is likely not because of the immediate family bar but because he saw the treaty arrangement with the Nubians as guaranteeing them against enslavement.

The official stance of the Ḥanbalī school of law is similar to the Mālikī one but is even more permissive: Muslims can buy the children of non-Muslim parents in the Abode of War, and one could even buy them from non-Muslims with whom one had a truce or treaty (muhādana, hudna). This latter addition was attributed to Ibn Taymiyya (d. 728/1328) and was judged to be the correct stance by the influential Ḥanbalī jurist al-Mardāwī (d. 885/1480) (though it was also reported that Ibn Taymiyya did not allow buying the children of those with whom Muslims had a treaty, since they are like dhimmīs). Al-Shālanjī (d. circa 240/854) stated that the only situation in which non-Muslims from outside the Abode of Islam cannot sell their children to Muslims is if they come into the Abode of Islam with safe conduct, since that creates safe passage for them as well as their children.¹⁷

The complication of the immediate family bar is introduced by Ibn Mufliḥ (d. 763/1362), a prominent Syrian Ḥanbalī and disciple of Ibn Taymiyya. Whether one can purchase children from non-treaty, non-Muslims (ḥarbī) in the Abode of War “depends on that non-treaty, non-Muslim’s emancipation by virtue of immediate family relation (raḥim), does it occur or not, since it is a rule of Islam.”¹⁸ An earlier, prolific Ḥanbalī jurist, Ibn Ḥamdān al-Ḥarrānī (d. 695/1295), had raised the same question. He implied that the matter hinges on whether one believes the emancipation brought by immediate family ownership applies to non-Muslims or if it is simply a matter of one person acquiring control over someone they then have the right to sell.¹⁹

A related parsing can be found in the Shāfiʿī school of law, which allows the purchase of non-Muslim children from their parents in the Abode of War while acknowledging the universality of the immediate family bar. Shāfiʿī scholars had long noted a tension between the immediate family bar, which they all assumed applied to non-Muslims and Muslims alike, and the raw control that allowed one person to subjugate and sell another. An authoritative voice in the school, the Qazvin jurist al-Rāfiʿī (d. 623/1226), reports scholars in his school asserting both prohibition (due to the immediate family bar, a position he attributes to the Egyptian Shāfiʿī jurist Ibn al-Ḥaddād [d. 344/955]) and permissibility (since forceful reduction to servitude [qahr] eventually dilutes the immediate family bar). Al-Rāfiʿī himself favours prohibition.²⁰

Even the prominent Shāfiʿī voices that allowed buying children, however, did so through legal dodges (ḥiyal). Al-Māwardī (d. 450/1058) allowed buying a non-treaty, non-Muslim’s child from them. But he and like-minded scholars argued this was not actually a sale, since the instant the parent formed the intention to sell their child, the child would be emancipated. Instead, this was simply the Muslim ‘buyer’ taking control (istīlāʾ) of a child being offered by their parent in exchange for money (al-Māwardī seems to have allowed buying a child from a non-Muslim protected by treaty as well, but this was rejected by prominent later Shāfiʿīs like al-Haytamī [d. 974/1567] and ʿAbd al-Ḥamīd al-Shirwānī [d. 1301/1884]).²¹

The third position is one that defers to non-Muslims’ norms. It is expressed by the influential early Ḥanafī jurist Abū al-Ḥasan al-Karkhī (d. 340/952) and is also chosen as correct by al-Walwālījī: one can buy non-Muslims’ children from them if that is acceptable in their culture.²² Reasoning similar to this Ḥanafī deference to local norms appears in the work of the prominent Ibāḍī scholar, Muḥammad b. Yūsuf Aṭṭafayyish (d. 1333/1914), who lived in the Algerian desert oasis of Wadi M’zab. He states that it is disliked (makrūh) to buy slaves from a pagan Black African (mushrik, al-sūdān) ruler selling his own subjects or from a pagan Black African selling their own relatives. Though many scholars consider it disliked or prohibited, Aṭṭafayyish rules that, in the case of polytheists (i.e., not Christians or Jews) who are not Black Africans (whom he sees as not possessing revealed religion), one can purchase their children from them if that is acceptable in their religion (dīn). Here he seems to take communities he understands to have customs rooted in a revelatory claim to be more worthy of deference than those he understands to be pure pagans. Aṭṭafayyish also reports that other prominent Ibāḍī scholars consider it permissible to buy whatever polytheists offer for sale (excluding items that Muslims cannot purchase per se, like wine) because the presumption in any transaction is that one can purchase whatever the person one is transacting with (muʿāmal) believes it is acceptable to sell.²³

Interestingly, Aṭṭafayyish notes that some Ibāḍī scholars had allowed buying a non-Muslim’s child but not other close relatives due to well-known Hadith, “A man’s child is part of what he has earned, and the best of what a person can consume is from what they have earned.”²⁴ While this Hadith is widely held to be authentic, its normal interpretation is that a parent can access property held in trust for their child and that children have an obligation to provide for their parents. The claim that the Hadith allows parents to sell their children into slavery is, to my knowledge, unique.²⁵

Whom Does God’s Law Address?

As with Ibn Mufliḥ and others, Aṭṭafayyish explains that the question of buying non-Muslims’ children as slaves hinges on whether one accepts that any person, Muslim or not, can enslave a close relative, since that relationship entails a duty of care (ʿahd). One response, says Aṭṭafayyish, is that “This applies to Islam, not to a polytheist owner.” Aṭṭafayyish finds this unconvincing. In his view, non-Muslims are addressed by God’s revelation and law just as Muslims are.²⁶ Here Aṭṭafayyish relates the question of non-Muslims selling their children to debates over who is accountable to the divine address (khiṭāb Allāh), a debate whose pervasiveness in Islamic thought the late Bernard Weiss noted “cannot be exaggerated.”²⁷

Pace Aṭṭafayyish’s relaxed claim that all people are accountable, the complexity and diversity of views on this issue can also not be exaggerated. The richness of this discourse on the addressees of revelatory commands in part stems from a fundamental tension present in the Quran itself and then in the foundations of Islamic substantive law. The Quran clearly aims its message at all people, believers and unbelievers alike, but it also allows those unbelievers who refuse to heed its message to continue their religious and even ethical practices under Muslim rule. They could deny the Prophet’s message, drink wine and raise pigs. As al-Shāfiʿī (d. 204/820) said, Muslims allow them to continue their rites and practices “as long as they do not harm Muslims…even if they harm each other.”²⁸

Though the vastness of this debate requires much more attention than can be given to it here, Muslim theologians offered two broad answers to why a human being obligated to heed revealed law and also possibly (according to the Muʿtazilite school) accountable by their very capacity of reason to arrive at its same ethical commands might nonetheless be exempted from the commands and prohibitions of the Shariah (as Kevin Reinhart expertly explains, this exemption did not exonerate them from denying Islam; it merely meant that they were not also guilty for not observing these prohibitions/requirements).²⁹ First was that they either essentially opted out of this duty to heed by paying the jizya. The second was that, due to their denial of God’s message, they occupied a lower station of accountability than Muslims. Most Ashʿarī theologians (subsuming the bulk of Shāfiʿī and Mālikī jurists), Mālik himself, most Ḥanbalīs and senior Ḥanafīs like al-Karkhī and Abū Zayd al-Dabūsī (d. 430/1039) affirmed non-Muslims were accountable to the Shariah. Most Ḥanafīs, in particular the school’s Central Asian strain, held they were not, at least in theory. Some scholars sought to thread the needle more subtly. The Ḥanafī al-Sarakhsī (d. 490/1096) held they were accountable to the rules of the Shariah (even if there were plenty of exemptions provided by established law) but not to acts of worship directed at salvation in the Hereafter. The Shāfiʿī polymath of Cairo, Badr al-Dīn al-Zarkashī (d. 792/1394), suggests that non-Muslims living under Muslim rule are addressed by the Shariah while those living in the Abode of War are not. In fact, al-Zarkashī mentions our question of non-Muslims in the Abode of War selling their children as slaves as one determined by one’s stance on whom is addressed by God’s law. Tellingly, he cannot clearly say which side is correct.³⁰

The nuances of the discourse on who is accountable to God’s address are far too sophisticated for casual generalisations. But it is noteworthy that those who we see deferring to what is acceptable in the non-Muslims’ culture tend to be Ḥanafīs, who are generally associated with the position that non-Muslims are not accountable to God’s address.³¹ Even those Ḥanafīs who feel they are, like al-Dabūsī, tend to offer crucial exceptions making it clear that Muslims are the locus of moral obligation, not humanity as a whole. For al-Dabūsī, non-Muslims may be addressed by God’s message. But they only become responsible for it and for its rules when they become aware of it, which would not be the case in the Abode of War.³² It is thus no surprise that al-Dabūsī rules that non-Muslims in the Abode of War can validly sell their children to one another. But a Muslim can under no circumstances purchase the child from them.³³ For him, the immediate family bar only entails the duty that a Muslim should not buy the non-Muslim child from their parents. Al-Sarakhsī may have considered non-Muslims accountable to God’s revelation and its moral rules, but his legal rulings suggest this did not count in practice beyond the borders of the Abode of Islam. Discussing buying slaves from non-Muslim merchants from the Abode of War, he says, all things being equal, a Muslim should not purchase slaves from them if that would separate family members from one another. For, “even if [the non-Muslim] is not addressed (mukhāṭab) by the prohibition on separating family members, the Muslim buyer is addressed with precaution against causing such a separation.”³⁴ This explanation creates a pregnant ambiguity: are Muslims responsible not to facilitate separating family members because separating them is something Muslims are not allowed to do or because this is a universal prohibition that non-Muslims are simply not aware of or bound by?

Conclusions: Universality vs. Relativity in the Shariah’s Normative View

As a number of prominent Muslim scholars put it, how one views the question of buying non-Muslims’ children from them depends on whether one thinks the Prophet’s statement that someone cannot own their own close relative is universal or limited to those deemed accountable to the Shariah of Islam. One perspective is very clearly that, as al-Awzāʿī put it, “our laws do not apply to them.” Like eating pork, the normative dimension of selling one’s children simply does not exist for non-Muslims.

For other scholars, the Prophet’s command is universal: no one can own their own children, no matter where they are or what they believe. This position raises an interesting interpretive question. When the Prophet said, “Whosoever owns a close relative, that close relative is free,” should this be understood as a statement of fact or a prescriptive moral command? If a prescriptive moral command, then this position assumes that the Shariah applies to all humans, Muslims or non-Muslims, everywhere (at least in this case…and we’d presume that scholars would have to explain why it would not apply in all others). If it is a statement of fact, it seems to reach beyond the normative arm of the Shariah into a realm of something akin to natural law. When Aṭṭafayyish says that no one can own/sell their child because the parental relationship involves an element of responsibility and care (ʿahd), that seems to be a reflection of human nature quite apart from divine commandments. The statement ‘No one can own a close relative’ would be akin to ‘The mother-infant relationship is one of care.’

A third, intermediary position, involves the question of intersecting moralities: non-Muslims can sell their children to each other, but Muslims cannot purchase them. This position could be viewed from two angles. The first is merely one of divine command: a non-Muslim can sell their child to another non-Muslim, but a Muslim cannot purchase them, just as one Christian can sell pork to another, but a Muslim cannot buy it. From the second angle, we read divine command as grounded in some ethical aim: a non-Muslim can sell their child to another non-Muslim, but Muslims cannot buy that child because Muslims cannot facilitate what God has defined as morally wrong, like breaking up a family. This second reading would interpret the Shariah ban on selling children as universal in its moral applicability but somehow only binding on Muslims. Finally, a last position effectively views the moral systems of non-Muslims outside the Abode of Islam as wholly determinative for them. If they consider it acceptable to sell their children, then there is nothing immoral about it, and Muslims can buy them. Here, the Shariah is a normative system that stops at the borders. It is noteworthy that the view that seems effectively to predominate, by principle, by deference or by legal dodge, is that Muslims can buy the children of non-Muslims sold to them in the Abode of War. There were willing sellers, willing buyers and, as with most transactions that we still engage in on a daily basis today, finite energy to investigate the ethical sourcing of what we buy. The maxim that we presume that those who wish to sell us something do so willingly and legitimately is ultimately the most practical.

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1. Georg Simmel, Sociology of Georg Simmel, trans. Kurt H. Wolff (New York: Free Press, 1950), 273–74.  ↩︎
2. See Irene Schneider, “Freedom and Slavery in Early Islamic Time (1^st/7^th and 2^nd/8^th Centuries),” Al-Qantara 28, n. 2 (2007): 369-373. ↩︎
3. Suzanne Miers, “Slavery: A Question of Definition,” Slavery & Abolition 24 (2003), 6; Justinian Codex 7.16.1 and 4.43.1, 4.10.12; Catherine Hezser, Jewish Slavery in Antiquity (Oxford: Oxford University Press, 2005), 187–88, 190. ↩︎
4. ʿAbd al-Qādir al-Badāyūnī, Muntakhabu-t-Tawārīkh, trans. W. H. Lowe, 3 vols. (Delhi: Renaissance Publishing, 1986), 2:405. ↩︎
5. Badāyūnī, Muntakhab al-tavārīkh ([Lucknow]: Nawal Kishore, 1868), 301. Badāyūnī explains that Nāgūrī had cited as his authority the fiqh compendium Fatāwā Ibrāhīm Shāhī, written for this famous ruler of the Sharqī sultanate of Jaunpur by Shihāb al-Dīn Aḥmad b. Muḥammad Niẓām Gīlānī/Kīkānī/Kīkalānī (sources differ on his name, d. 874–5/1469–71), who had been invited to Jaunpur by the sultan and made a judge there. See Mian M. Saeed, The Sharqi Sultanate of Jaunpur (Karachi: University of Karachi Press, 1973), 181, 188-9; Kātib Chelebī, Kashf al-ẓunūn, ed. Muḥammad ʿAbd al-Qādir ʿAṭā, 7 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 2008), 1:83; ʿAbd al-Ḥayy al-Ḥasanī, Nuzhat al-khawāṭir, 3^rd ed. (Hyderabad: Dāʾirat al-Maʿārif al-ʿUthmāniyya, 1408/1988), 3:16–17. I have located what appears to be the second of two sizable manuscript volumes of the Fatāwā Ibrāhīm Shāhī but have not been able to find this material in it.  ↩︎
6. Abū Yūsuf Mullā Jīvan Amethī, al-Tafsīrāt al-Aḥmadiyya (Kazan: Khārīṭiyūnif Maṭbaʿa, 1904), 334–35. ↩︎
7. Amal Kumar Chattopadhyay, Slavery in the Bengal Presidency, 1772–1843 (London: Golden Eagle Publishing House, 1977),81–83, 158–61. ↩︎
8. César E. Dubler, Abū Ḥāmid El Granadino y su Relación de Viaje por Tierras Eurasiáticas (Madrid: Imprenta y Editorial Maestre, 1953),24; Abū Isḥāq al-Iṣṭakhrī, al-Masālik wa-l-mamālik (Beirut: Dār Ṣādir, 1990, reprint of MJ. de Goeje’s 1927 Brill edition), 223. ↩︎
9. For more details on this, see my essay “Incest & Widow Burning: How Much Can Muslims Stomach?”. ↩︎
10. See Anver Emon, Religious Pluralism and Islamic Law (Oxford: Oxford University Press, 2012), 110–12. ↩︎
11. ʿAlī b. Khalaf Ibn Baṭṭāl, Sharḥ Ṣaḥīḥ al-Bukhārī, ed. Abū Tamīm Yāsir Ibrāhīm, 10 vols. (Riyadh: Maktabat al-Rushd, 1423/2003), 6:341–42. See also Ibn Ḥajar, Fatḥ al-Bārī, ed. ʿAbd al-ʿAzīz bin Bāz and Ayman Fuʾād ʿAbd al-Bāqī, 16 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1997), 4:517–18. For these Hadiths, see Ṣaḥīḥ al-Bukhārī: kitāb al-buyūʿ, bāb shirāʾ al-mamlūk min al-ḥarbī wa-wahbatihi wa ʿitqihi. For the full story of Salmān, see Musnad Aḥmad Ibn Ḥanbal (Maymaniyya ed.), 5:442–43; see also Andrew D. Magnusson, Zoroastrians in Early Islamic History: Accommodation and Memory (Edinburgh: Edinburgh University Press, 2022), 84–86. ↩︎
12. Al-Walwālījī’s affirmation of the validity of such slavery was representative; Ẓahīr al-Dīn ʿAbd al-Rashīd al-Walwālījī, al-Fatāwā al-walwālījiyya, ed. Khalīl al-Mays, 4 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 2003), 2:307–308. ↩︎
13. Man malaka dhā raḥim maḥram fa-huwa ḥurr. See Sunan of Abū Dāwūd: kitāb al-ʿitq, bāb fī man malaka dhā raḥim maḥram; Jāmiʿ al-Tirmidhī: kitāb al-aḥkām, bāb mā jāʾa fī man malaka dhā raḥim maḥram. Abū Dāwūd and al-Tirmidhī note some of the disagreements about whether the most reliable versions of this saying go back to the Prophet or to ʿUmar as well as some inconsistencies in the isnād of some narrations of the report. See also Abū Sulaymān al-Khaṭṭābī, Maʿālim al-sunan, 2^nd ed., 4 vols. (Beirut: al-Maktaba al-ʿIlmiyya, 1981), 4:72; Abū Bakr al-Bayhaqī, al-Sunan al-kubrā, ed. Muḥammad ʿAbd al-Qādir ʿAṭā, 11 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1999), 10:487–91. ↩︎
14. Al-Walwālījī, al-Fatāwā al-walwālījiyya, 2:307–308. ↩︎
15. The things Muslims are not allowed to buy from non-Muslims in the Abode of War are things they would not be allowed to buy by their very essence, such as wine or pigs; Maḥmad (sic) b. Aḥmad al-Ruhūnī et al., Ḥāshiyat al-Ruhūnī ʿalā Sharḥ al-shaykh ʿAbd al-Bāqī al-Zurqānī li-Mukhtaṣar al-Khalīl, 8 vols. (Cairo/Būlāq: al-Maṭbaʿa al-Amīriyya, 1306/1889), 3:5 (thanks to my student Mohamad Ali for this citation). See also Muḥammad b. Muḥammad al-Ḥaṭṭāb, Mawāhib al-jalīl li-sharḥ Mukhtaṣar Khalīl, ed. Zakariyyā ʿUmayrāt, 8 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1416/1995), 4:566. ↩︎
16. Abū ʿUbayd, Kitāb al-Awmāl, 1:252. ↩︎
17. Shams al-Dīn Muḥammad Ibn Mufliḥ, Kitāb al-Furūʿ, ed. ʿAbd Allāh ʿAbd al-Muḥsin al-Turkī, 12 vols. (Beirut: Muʾassassat al-Risāla; Riyadh: Dār al-Muʾayyad, 1424/2003), 10:316; ʿAlī b. Sulaymān al-Mardāwī, al-Inṣāf fī maʿrifat al-rājiḥ min al-khilāf, ed. Muḥammad Ḥāmid al-Fiqī, 12 vols. ([Cairo]: Maṭbaʿat al-Sunna al-Muḥammadiyya, 1374/1955), 4:215. This al-Shālanjī seems to be Abū Isḥāq Ismāʿīl b. Saʿīd al-Shālanjī, d. either 246/861 or 230/845, with whom Ibn Ḥanbal had legal discussions and who, according to the Ḥanbalī school, was also a transmitter of Ibn Ḥanbal’s legal responsa. See Muḥammad Ibn Abī Yaʿlā, Ṭabaqāt al-ḥanābila, ed. ʿAbd al-Raḥmān Sulaymān al-ʿUthaymīn, 3 vols. (Riyadh: n.p., 1419/1999), 1:273–75; Ibn al-Jawzī, al-Muntaẓam fī tārīkh al-mulūk wa-l-umam, ed. Muḥammad ʿAbd al-Qādir ʿAṭā and Muṣṭafā ʿAbd al-Qādir ʿAṭā, 18 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 1992), 11:155, 341; idem, al-Lubāb fī tahdhīb al-ansāb, 3 vols. (Baghdad: Maktabat al-Muthannā, n.d.), 2:177. ↩︎
18. Ibn Mufliḥ, 10:316. ↩︎
19. Al-Mardāwī, 4:216. ↩︎
20. ʿAbd al-Karīm al-Rāfiʿī, al-ʿAzīz fī sharḥ al-Wajīz, ed. Yaḥyā Ḥusayn Musāwā al-Mubārakī, 23 vols. (Dubai: Jāizat Dubay al-Dawliyya li-l-Qurʾān al-Karīm, 1438/2016), 22:367–68. ↩︎
21. The response to al-Māwardī’s permitting buying the treaty-holder’s child was that the parent’s decision to sell their child annulled the child’s protected status, so purchasing them would not be a sound transaction; Ibn Ḥajar al-Haytamī et al., Ḥawāshī Tuḥfat al-muhtāj bi-sharḥ al-Minhāj, 10 vols. (Cairo: Maṭbaʿat Muṣṭafā Muḥammad, n.d.), 4:248. ↩︎
22. Al-Walwālījī, al-Fatāwā al-walwālījiyya, 2:307–308. ↩︎
23. Aṭṭafayyish, Sharḥ Kitāb al-Nīl, 8:265–68. See also Yacine Daddi Addoun, “Slavery and Abolition in Ibāḍī Theology: The Thought, the Un-Thought, the Unthinkable,”in Ibadi Theology: Rereading Sources and Scholarly Works, ed. Ersilia Francesca (Hildesheim: Georg Olms, 2015), 235–36. As al-Ṭabarī and others held, People of the Book affirmed God’s unity (tawḥīd), while pagans did not; Ibn Ḥajar, Fatḥ, 6:139. ↩︎
24. The Hadith his cites is: walad al-rajul min kasbihi wa-inna afḍal mā yaʾkulu al-insān min kasbihi; Aṭṭafayyish, Sharḥ Kitāb al-Nīl, 8:266–67. ↩︎
25. This Hadith appears in major Sunni Hadith collections, such as Sunan of Abū Dāwūd: kitāb al-ijāra, bāb fī al-rajul yaʾkulu min māl waladihi (inna min aṭyab…); Jāmiʿ al-Tirmidhī: kitāb al-aḥkām, bāb mā jāʾa anna al-wālid yaʾkhudhu min māl waladihi; Sunan al-Nasāʾī: kitāb al-buyūʿ, bāb al-ḥathth ʿalā al-kasb. It forms the subject of an interesting treatise by the Yemeni reformist scholar Ibn al-Amīr al-Ṣanʿānī (d. 1182/1768), Risāla laṭīfa fī sharḥ ḥadīth anta wa-mālika li-abīk, ed. Musāʿid Sālim al-ʿAbd al-Jādir (Beirut: Dār al-Bashāʾir al-Islāmiyya, 1422/2001). ↩︎
26. Aṭṭafayyish, 8:267. ↩︎
27. Bernard Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1998), 34. ↩︎
28. See al-Shāfiʿī, al-Umm, ed. Rifʿat Fawzī ʿAbd al-Muṭṭalib, 11 vols. (Mansoura: Dār al-Wafāʾ, 1422/2001), 5:504. The earliest evidence for the permissibility of keeping pigs, selling wine, etc. seems to be its appearance as accepted fact in early legal works, such as the Umm of al-Shāfiʿī; ibid., 5:507. Some narrations of various ‘Pacts of ʿUmar’ (e.g., one narrated by al-Ḥaṭīṭī) include the clause that non-Muslims will “not sell wine in the markets of Muslims,” while others state they will not sell wine with no qualification mentioned; ʿAbd Allāh b. Aḥmad al-Rabaʿī, Juzʾ fīhi shurūṭ al-naṣārā, ed. Anas ʿAbd al-Raḥmān al-ʿAqīl (Beirut: Dār al-Bashā’ir al-Islāmiyya, 1427/2006), 24, 27, 31. For the variety of Pact of ʿUmar arrangements re: wine and pigs, see also Levy-Rubin, Non-Muslims in the Early Islamic Empire, 66, 72, 81, 83, 176. Levy-Rubin notes how at some points, such as in Tulunid Egypt, wine was widely prohibited even in Christian areas; Levy-Rubin, 109. ↩︎
29. Kevin Reinhart, “Failures of Practice or Failures of Faith: Are Non-Muslims Subject to the Sharia?,” in Between Heaven and Hell: Islam, Salvation, and the Fate of Others, ed. Mohammad Hassan Khalil (Oxford: Oxford University Press, 2012), 14. ↩︎
30. Reinhart, 17; Emon, 83–86; Muḥammad b. Bahādur al-Zarkashī, al-Baḥr al-muḥīṭ fī uṣūl al-fiqh, ed. Muḥammad Muḥammad Tāmir, 4 vols. (Beirut: Dār al-Kutub al-ʿIlmiyya, 2007), 1:320–30 (329 in particular). ↩︎
31. It is tempting to link this constellation of positions to these Ḥanafīs’ position on the ‘edges’ of Islamdom. As Reinhart observes, “In short, it is frontier Muslims who support the ‘non-addressed’ position….” But that does not account for the positions of other ‘frontier’ Muslims like Mālikīs. See Reinhart, 17. ↩︎
32. Abū Zayd al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, ed. Khalīl Muḥyī al-Dīn al-Mays (Beirut: Dār al-Kutub al-ʿIlmiyya, 1421/2001), 431–32. ↩︎
33. Ibn Abī al-Wafāʾ al-Qurashī, al-Jawāhir al-muḍiyya fī ṭabaqāt al-ḥanafiyya, ed. ʿAbd al-Fattāḥ Muḥammad al-Ḥuluw, 5 vols. (Giza: Mu’assasat al-Risāla, 1978–88), 4:94. ↩︎
34. Al-Sarakhsī, al-Mabsūṭ, 30 vols. (Beirut: Dār al-Maʿrifa, 1409/1989), 13:142. ↩︎