Sunday, June 24, 2012

Slavery and Islam Part 3 – Istirqaq


Slavery Part 3:
The Solution regarding Istirqaq
  • The honourable shaykh and mujtahid Imam Taqi al-Din al-Nabhani (d.1977) writes in his masterpiece al-Shakhsiyya al-Islamiyya (‘The Islamic Personality’):
The ways of taking slaves in the ancient systems were varied and very well known in the world when Islam came. They would take the bankrupt debtor as slaves and if the debtor became poor or bankrupt, he would then be taken as a slave. Those who committed a sin or mistake would also be taken as a slave as a punishment for the crime. Free persons would offer themselves as slaves where they would then sell themselves off to others on the condition of later being manumitted based on an agreed date. Also, stronger tribes would enslave members of weaker tribes and wars and battles would be one general situation in which families were taken as slaves. They would also permit enslaving any person from a particular country when they were conquered. Others would restrict enslaving to those who were taken as prisoners in war – whether men, women and children. Whoever was lawfully captured as a prisoner of war and was then taken as a slave, he would be considered a slave and acknowledged as one.
            When Islam came, it set down the conditions and rulings that allow for taking slaves and detailed the situations related to war. It clarified for example, the case of the bankrupt debtor which involves the creditor extending time to the debtor so that he can gather the money to pay it back. Allah most high says: {If the debtor is in difficulty, then delay things until matters become easier for him…}.[1] It clarified in detail the punishment for crimes committed particularly the punishment for stealing whereas in the earlier systems the punishment was enslavement. And Allah Most High alludes to this punishment when He said: {And they answered: ‘the penalty is [enslavement] of the person in whose bag the cup was found. This is how we punish wrongdoers…}.[2] Islam expounded the punishment for stealing as cutting the hand. Allah Most high says: {Cut off the hands of the thieves whether they are men or women as punishment for what they have done...}.[3] It made the contract between the slave and his mawla one that is based on manumission and not enslavement. It categorically forbade enslaving free people based on what he (Allah bless him and grant him peace) said regarding what Allah –Mighty and Exalted is He – said: “I will quarrel with three people on the Day of Judgment: one who makes a covenant in My Name but then betrays it; a man who sells a free person and consumes the price and a person who employs a labourer and gets the full work done by him but does not pay him his wages…”[4] Allah Most High will quarrel with the one who sells free persons.[5]
As for the situation of war, Islam has detailed the complete prevention of taking prisoners of war as slaves. In the second year of the Hijra, the rulings regarding prisoners of war were outlined which is: Either they are pardoned (mann) by releasing them free without any exchange, or they are ransomed by money or captives like them whether Muslims or dhimmi.[6] Therefore, taking prisoners of war as slaves was totally abolished. Allah Most high said: {When you meet the disbelievers in battle, strike them in the neck and once they are defeated, bind any captives firmly – later you can release them by grace or by ransom – until the toils of war have ended}.[7] The verse is clear regarding this meaning: either pardon (mann) or ransom (fida’); no other meaning is possible.[8] The Arabic language requires restricting the ruling regarding prisoners of war to one of these two options – either pardon or ransom. This is because the particle “imma/إما” denotes a choice between two things and for restricting two things. Here in the verse, it has come giving the choice between pardon and ransom and restricting it to these two options only.[9] When {imma} was expressed to denote restriction, it restricted what follows it which is {release them by grace or by ransom…}.[10]
Here, a question may arise regarding prisoners of war because some fuqaha’ deduced that the Khalifa can enslave these prisoners if he wishes to.[11] This question is regarding the Prophet (Allah bless him and grant him peace) taking prisoners of war after this verse was revealed. This verse was revealed after the battle of Badr in the second year of the Hijra before the war between the Messenger (Allah bless him and grant him peace) and the disbelievers of Quraysh had begun. However, the Messenger (Allah bless him and grant him peace) took slaves in the battle of Hunayn which occurred after the battle of Badr.[12] The Messenger’s (Allah bless him and grant him peace) action is considered both legislation (tashri`) and an explanation (tafsir) of the verses of Allah. So how could enslaving prisoners of war be prevented by this verse while the Messenger of Allah (Allah bless him and grant him peace) enslaved people after its revelation in Hunayn?
The answer to this question is as follows: the actions of the Messenger of Allah (Allah bless him and grant him peace) as well as his speech in relation to the Qur’anic verses functions as either [1] clarifying a mujmal(‘ambivalent’) matter; [2] restricting a mutlaq (‘absolute’) matter or [3] specifying an `amm (‘general’) matter. The actions and speech of the Messenger of Allah (Allah bless him and grant him peace) cannot abrogate the Qur’an. The verse regarding prisoners of war is not mujmal such that it needs clarifying, nor is it `amm such that it needs specifying, nor is it mutlaq such that it needs restricting. Hence if it was proved correct that the Messenger (Allah bless him and grant him peace) did actually enslave others after the revelation of this verse, his action would abrogate it and this is not permitted.[13] In addition, the Messenger’s enslaving of prisoners of war is a singular report (khabar ahad) which contradicts the verse: {later you can release them by grace or by ransom…}. When thekhabar ahad contradicts a definite (qat`i) verse and ahadith, the meaning of the khabar ahad is rejected.[14]Therefore, no consideration is given to the view which reports that the Messenger of Allah (Allah bless him and grant him peace) enslaved prisoners of war after the verse was revealed.
However, what the Messenger of Allah (Allah bless him and grant him peace) actually did in the battle of Hunayn was to take women and children who were offered by the combatants from the mushrikun to fight in order to swell the numbers and incite their men to fight in the battle field as war booty. So when they were defeated in the battlefield, the women and children became war booty (sabaya) and the Messenger of Allah (Allah bless him and grant him peace) divided them between the Muslim fighters. When he (Allah bless him and grant him peace) was requested to reconsider this matter, he asked the Muslims to relinquish their right to this war booty voluntarily and returned the prisoners to their people. What this indicates is only the permissibility of taking women and children that accompany the men in the battlefield to increase their numbers and for inciting them to fight as slaves.[15] As for other than women and children, i.e. male combatants, the Messenger of Allah (Allah bless him and grant him peace) never enslaved any one of them and so it is not correct to say he enslaved any male combatant whether Arab, Jew or Christian. The word “prisoner of war” (asir) in its unrestricted sense designates a male combatant and the word “war-booty/captive” (sabaya) designates women and children and not prisoners of war. From this it becomes clear that Islam prevents enslaving male prisoners of war who are combatants and has given the Khalifa the option to either take as slaves the women and children or free them but there is no ransom for them based on what the Messenger of Allah (Allah bless him and grant him peace) did in Hunayn where he took the women and children as slaves but then released them and in the battle of Khaybar where he set them free and did not enslave them. This is in the case when the women and children are part of the army. However, if they remain in their houses then nothing may be done to them whether taking them as prisoners of war or as war booty.
As for the action of the Khalifa in the matter of enslaving the women and children, it is based on the war policy required [at the time] in dealing with the enemy. The purpose is not to enslave rather it is one of the modes of engagement in war whose matter is left for the Khalifa to decide what is best and required in dealing with the enemy.
From the above discussion, it is clear that Islam solved the problem of enslaving and has prevented all situations in which enslaving occurs and left it for the Khalifa to decide in what situation women and children may be taken as slaves when engaged with the enemy. It may be that he does choose to take them as slaves especially in the case of women and children who go out to support their troops in order to swell the numbers and incite them to fight as is the case in previous wars up till even now. Therefore, enslaving others will not continue under Islam and there will be absolutely no situation where it will occur. Thus, Islam came to eliminate enslavement of others.[16]
[End]
Notes:
  • Islam has categorically prohibited enslaving free persons.
  • Islam came to remove earlier laws regarding poor treatments of slaves.
  • Islam generally forbade taking men, women and children as slaves.
  • Islam forbade enslaving prisoners of war.
  • Islam made an exception of permission – not obligation, nor recommendation – to take women and children actively engaged in battle as slaves.
  • The context of the ruling regarding taking women and children combatants as slaves is one related to military laws and laws of combat.
s.z.c.

[1] Q. 2:280.
[2] Q. 12:75. Imam Ibn al-Jawzi writes:
قوله تعالى: { إِن كنتم كاذبين } أي: في قولكم، { وما كنا سارقين }. { قالوا }: يعني إِخوة يوسف { جزاؤه من وجد في رحله فهو جزاؤه } أي: يُستعبَد بذلك. قال ابن عباس: وهذه كانت سُنَّة آل يعقوب
“Allah’s statement: {If you were liars…}, i.e. in what you say. {We were not thieves…}. {They said}, i.e. Yusuf’s brothers {that is the penalty for he in whose bag the cup is found}, i.e. they would be enslaved. Ibn `Abbas said: this was the sunna of the people of Ya`qub [as]…” See Zad al-Masir, vol.4, p.260.
[3] Q. 5:38.
[4] Bukhari, Sahih (#2227).
[5] This is a qarina (‘contextual indication’) that it is a prohibition (tahrim) because wherever the anger, wrath and extreme displeasure of Allah is over something, it amounts to being a prohibition. For a discussion on qara’in, see Sh. `Ata’ b. Khalil, Taysir al-Wusul ila ’l-Usul, pp.19-30.
[6] “Dhimmi”:  a citizen of the Islamic State. For a discussion on views, see C. Bennett, Muslims and Modernity, pp.159-173.
[7] Q. 47:4. Imam al-Qurtubi states:
الثالثة ـ واختلف العلماء في تأويل هذه الآية على خمسة أقوالالأوّل ـ أنها منسوخة، وهي في أهل الأوثان، لا يجوز أن يفادوا ولا يُمَنّ عليهم الثاني ـ أنها في الكفارجميعاً. وهي منسوخة على قول جماعة من العلماء وأهل النظر، منهم قتادة ومجاهد … الثالث ـ أنها ناسخة؛ قاله الضحاك وغيره. روى الثوري عن جُوَيْبِر عن الضحاك: { فَٱقْتُلُواْ ٱلْمُشْرِكِينَ حَيْثُ وَجَدتُّمُوهُمْ } قال: نسخها «فَإمَّا مَنًّا بَعْدُ وَإمَّا فِدَاءً». وقال ابن المبارك عن ابن جُرَيج عن عطاء: «فَإمَّا مَنًّا بَعْدُ وَإمَّا فِدَاءً» فلا يُقتل المشرك ولكن يُمَنّ عليه ويُفادى؛ كما قال الله عز وجل… الرابع ـ قول سعيد بن جُبَير: لا يكون فداء ولا أسر إلا بعد الإثخان والقتل بالسيف؛ لقوله تعالىمَا كَانَ لِنَبِيٍّ أَن يَكُونَ لَهُ أَسْرَىٰ حَتَّىٰ يُثْخِنَ فِي ٱلأَرْضِ . فإذا أسِر بعد ذلك فللإمام أن يحكم بما رآه من قتل أو غيره الخامس ـ أن الآية محكمة، والإمام مخيَّر في كل حال؛ رواه علي بن أبي طلحة عن ابن عباس، وقاله كثير من العلماء منهم ابن عمر والحسن وعطاء، وهو مذهب مالك والشافعي والثوري والأوزاعي وأبي عبيد وغيرهم. وهو الاختيار
The third discussion: the exegetes are divided over the meaning of this verse into five opinions: [1] the verse is abrogated (mansukh) as it came down regarding the polytheists and so it is not permitted to ransom them nor to pardon them…; [2] it refers to all the non-believers and is abrogated according to a group of scholars and researchers such as Qatada and Mujahid… [3] this verse abrogates previous verses and this was the opinion of al-Dahhak and others. al-Thawri relates from Jubayr from al-Dahhak that {kill the polytheists wherever you find them} is abrogated by {either release them by grace or by ransom}. Ibn al-Mubarak said form Jurayj from `Ata’ regarding {release them by grace or by ransom} so do not kill the polytheists but either ransom them or pardon them in accordance with the words of Allah Mighty and Exalted… [4] The opinion of Sa`id b. Jubayr is that no ransoming nor pardoning should take place until they are completely routed or killed with the sword based on Allah’s saying {it is not for the Prophet to take prisoners of war until he has given a sound thrashing in the land…}. Hence, if they are taken prisoners after that, then it is up to the Imam to decide what he thinks is best, i.e. whether to kill them or some other decision…[5] the verse is muhkama (‘perspicuous’) and the Imam has the choice. This was narrated by `Ali b. Talha from Ibn `Abbas and a lot of the scholars held to this opinion like `Umar, Hasan, `Ata’, the school of Malik, al-Shafi`i, al-Thawri, al-Awza`i, Abu `Ubayd and others. This is the preferred opinion…” See al-Jami` li-Ahkam al-Qur’an, vol.16, pp.208-209.
[8] Cf. A. Z. Yamanai, “Humanitarian International Law in Islam: A General Outlook” in Understanding Islamic Law, ed. by H. M.  Ramadan, pp.85-93; M. Khadduri, War and Peace in the Law of Islam, pp.119-129 and N. A. Shah,Islamic Law and the Law of Armed Conflict, pp.77-78.
[9] Imam Fakhr al-Din al-Razi writes:
المسألة الخامسة: { حَتَّىٰ } لبيان غاية الأمر لا لبيان غاية القتل أي حتى إذا اثخنتموهم لا يبقى الأمر بالقتل، ويبقى الجواز ولو كان لبيان القتل لما جاز القتل، والقتل جائز إذا التحق المثخن بالشيخ الهرم، والمراد كما إذا قطعت يداه ورجلاه فنهى عن قتلهثم قال تعالى: { فَشُدُّواْ ٱلْوَثَاقَ } أمر إرشادثم قال تعالى: { فَإِمَّا مَنًّا بَعْدُ وَإِمَّا فِدَاءً } وفيه مسائلالمسألة الأولى: (إما) وإنما للحصر وحالهم بعد الأسر غير منحصر في الأمرين، بل يجوز القتل والاسترقاق والمن والفداء، نقول هذا إرشاد فذكر الأمر العام الجائز في سائر الأجناس، والاسترقاق غير جائز في أسر العرب، فإن النبي صلى الله عليه وسلم كان معهم فلم يذكر الاسترقاق، وأما القتل فلأن الظاهر في المثخن الإزمان، ولأن القتل ذكره بقوله { فَضَرْبَ ٱلرّقَابِ } فلم يبق إلا الأمران.
“The fifth discussion: {hatta} which denotes explication of the extent of the command (li-bayan ghayat al-amr)  and not explication of the extent of killing, i.e. ‘until you have defeated them so the need to fight does not remain’. If the particle is held to mean explicating the extent of killing, then it would be permitted to kill. So killing would be permitted even if routing them completely meant killing old men [...] then Allah Most High said: {and bind any prisoners firmly} is a command denoting instruction (irshad). Then He Most High said: {either release them by grace or by ransom}. This has a few points: the first point is that the particle ‘imma’ is used for restriction and their [s: i.e. the enemy combatant] condition after captivity is not restricted to two options and so they can be killed, enslaved, pardoned or ransomed. We say this is an instruction and Allah has mentioned a general command that includes all types. Enslaving Arab prisoners is not permitted. The Prophet was with them and he did not permit enslaving. As for killing them, it is because the one who is defeated is helpless and Allah also said {strike their necks} and thus mentioned killing prisoners of war. That leaves us with only two options [s: either grace or ransom]… ” See al-Razi, Mafatih al-Ghayb, vol.7, p.508. For a discussion on the particle hatta/حَتَّىٰ , see Ibn Hisham, Mughni al-Labib, vol.1, pp.123-126.
[10] Q. 47:4. Cf. M. S. Ahmad, Slavery in Islam, pp.70-74 for different views on the syntax of this verse.
[11] Khadduri, War and peace, pp.130-133 and K. Abou El-Fadl, “Between Functionalism and Morality: The Juristic Debates on the Conduct of War” in J. E. Brockopp, Islamic Ethics of Life:  Abortion, War and Euthanasia, pp.116-119.
[12] Ibn Hisham, al-Sira al-Nabawiyya, vol.1, pp.605-715 and vol.2, pp.5-43..
[13] A. Abu Sulayman, Towards an Islamic Theory of International Relations, pp.99-102.
[14] See al-Nabhani, al-Shakhsiyya al-Islamiyya, vol.3, pp.491-492.
[15] V. Rispler-Chaim, Disability in Islamic, p.45.
[16] al-Nabhani, al-Shakhsiyya al-Islamiyya, vol.2, pp.277-280.

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