Slavery and Freedom in the Yaḥyā b. Yaḥyā (d. 234/848) Recension of the Muwaṭṭaʾ of Mālik b. Anas

The years I spent working on the forthcoming translation of the Muwaṭṭaʾ overlapped in part with the rise of the Islamic State in Iraq and Syria (“ISIS”), and its claim to a caliphate. Among other outrages, ISIS introduced certain forms of slavery to the territory under its control, most prominently, concubinage. This decision was ostensibly to demonstrate ISIS’ resolve in restoring the supremacy of Islamic law to both Muslims and non-Muslims. ISIS’ atavistic restoration of slavery suddenly drew attention to Islamic law’s position on slavery, the history of slavery in the Muslim world, and the genuineness of Muslim commitments to its abolition. The unexpected modern relevance of debates regarding slavery in Islamic law suddenly gave me great reason to pay careful attention to how the Muwaṭṭaʾ portrayed slavery in the earliest Muslim community of Medina and the Hejaz. When I began the translation project in the fall of 2014, I had hardly given much thought to slavery, dismissing it as little more than an archaic practice with little normative relevance to contemporary understandings of Islamic law. Almost five years later, as a result of both the barbarism of ISIS and the counter-revolution of the autocratic Arab states, and with the benefit of having spent several years closely reading the Muwaṭṭaʾ, including its numerous texts on slavery, I now realize that understanding slavery – as a normative institution – has an important role to play in modern understandings of Islamic law, and the idea of citizenship in modern Muslim states.

It is hard to avoid the conclusion that slavery was a central feature of the social life of seventh and eighth century (Common Era) Medina. Whether in the chapters on marriage and divorce or those on trade (sales, leases, commercial and agricultural partnerships), to say nothing of its lengthy chapters on manumission, slavery, in one form or another, is ubiquitous in the Muwaṭṭaʾ. This undeniable fact of social history might be shocking to contemporary Muslims who think of Islam as an anti-slavery ideology.

On the other hand, there is evidence of a pro-emancipation outlook in Mālik’s treatment of various issues that probably paved the way for the juristic principle advocated by later Mālikī jurists that “the Lawgiver looks forward to freedom (al-shāriʿ yatashawwaf ilā al-ḥurriyya),” the Lawgiver here being God. This legal principle served to summarize a policy of the law whose existence is evidenced by numerous individual rules governing particular cases.  Many of these particular rules are well-attested in the Muwaṭṭaʾ itself. Mālik was of the view, for example, that a co-owner of a slave could effectively deprive his co-owners of their property interest in the slave if he unilaterally manumitted his partial interest in the slave. In such a case, the slave was manumitted in his or her entirety, regardless of the co-owners’ consent, provided that the manumitting co-owner had sufficient funds to reimburse his co-owners the fair market value of their interests in the manumitted slave.

Another example was Mālik’s treatment of a slave’s installments under a manumission contract (kitāba). Such a contract, and the payments made under the contract, are a puzzle inasmuch as they do not give the master any additional right to the slave’s property: because the slave is already the master’s property, whatever the slave earned already belonged to the master. Mālik therefore did not treat a manumission contract like an ordinary commercial contract involving a debt; instead, he understood the contract as a unilateral reward contract which bound the offeror (i.e., the slave’s owner) upon acceptance by the offeree (i.e., the slave), but which gave the offeree (i.e., the slave), an option to repudiate the undertaking at any time. This analysis is more advantageous to the slave than the alternative of treating it as an instalment sale for the purchase of his or her freedom because, among other things, it gave the slave the absolute right of pre-payment. This means that the slave can compel the master into accepting early payment and thus obtain freedom before the contractually specified date. Mālik’s analysis also meant that a post-contractual reduction in the value of the instalments due, in exchange for immediate payment of the reduced sum, were valid, e.g., if the original amount the slave was to pay was 1000 in three yearly instalments, but the debt was later reduced to one immediate payment of 500. Generally applicable principles of commercial law would have normally precluded both options, in the first case, because a debtor cannot compel the creditor’s performance prior to the contractually specified date, and in the second, because a debt cannot be reduced in exchange for payment in advance of its contractual maturity date.

One could cite numerous other cases in which Mālik departed from what otherwise might appear to be the straightforward legal analysis of a case when it involved a slave in order to tip the scales in favor of the slave’s future freedom. The question is why Mālik did so. One thing we can rule out is the notion that slaves in Medinese society were persons lacking all legal rights. The Muwaṭṭaʾ is replete with cases of slaves that had extensive property holdings and even died leaving substantial amounts of real property, cash, and who even had their own slaves, male and female, concubines, and children, sometimes born to free wives. Slaves, therefore, seemed to enjoy relatively robust property rights and even the right to form families. What they lacked was the secure enjoyment of those rights. A master, in theory, could always exercise his prerogatives as the slave’s owner and take all the slave’s property for himself. He could also force his slave to sell or manumit the slave’s own slaves and concubines. Accordingly, while a slave in principle and in fact probably enjoyed many of the private law rights of a free person, his ability to the secure enjoyment of those entitlements was subject to his master’s whims.

Equally significant, the slave suffered important public disabilities, including the inability to testify in court, to pass his estate to his heirs, and the absence of legal protection to his reputation, i.e., a slave was not protected by the law against slander (qadhf). For these reasons, Mālik consistently viewed manumission as a process by which a person gained the full protections of, and became fully subject to, the law. He referred to the objective of manumission as the “perfection of the person’s legal inviolability (tatimm ḥurmatuhu)” such that the slave both enjoyed all the protections and privileges of the law, and became fully accountable for his actions (in many areas of the law, slaves were subject to a lesser degree of culpability than free persons for their violations of the law, e.g., adultery). Mālik excludes manumission from many of the rules that otherwise regulate property and contract because he understood manumission as primarily about securing full recognition as an equal member of society. Accordingly, the logic of property and contract could not form the basis for regulating manumission.

Mālik’s view of freedom, therefore, can be meaningfully understood as a form of republican freedom: while non-interference (commonly known as negative freedom) is valuable, it is the positive freedom to be recognized as a fully responsible and participating member of the political community that is the ultimate aim of freedom. In the post-Arab Spring world, Arab autocrats are offering their subjects the negative freedoms of the market: the rights to acquire, consume, and accumulate money and possessions, but no positive rights of political participation that would make the enjoyment of those rights secure against arbitrary interference or even deprivation. The importance of the secure enjoyment of rights was vividly displayed in the recent “Ritz-Carlton” episode in the Kingdom of Saudi Arabia, in which the Saudi crown prince, Muhammad bin Salman, in the name of fighting corruption, extorted billions of dollars from scores of the Kingdom’s leading political and business figures. The Muwaṭṭaʾ’s recognition that freedom is more than the freedom to participate in the market, therefore, is a testament to the importance of political freedom as an Islamic ideal, despite the contrary claims of Arab autocrats and their clerical apologists.

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