III.—With regard to the Enslaving of Captives, the author of the Hidāyah says:
“The Imām, with respect to captives, has it in his choice to slay them, because the Prophet put captives to death, and also because slaying them terminates wickedness; or, if he choose, he may make them slaves, because by enslaving them the wickedness of them is remedied, and at the same time the Muslims reap an advantage; or, if he please, he may release them so as to make them freemen and Ẕimmīs, according to what is recorded of ʿUmar; but it is not lawful so to release the idolaters of Arabia, or apostates. It is not lawful for the Imām to return the captives to their own country, as this would be strengthening the infidels against the Muslims. If captives become Muslims, let not the Imām put them to death, because the wickedness of them is hereby remedied without slaying them; but yet he may lawfully make them slaves, after their conversion, because the reason for making them slaves (namely, their being secured within the Muslim territory) had existence previous to their embracing the faith. It is otherwise where infidels become Muslims before their capture, because then the reason for making them slaves did not exist previous to their conversion. It is not lawful to release infidel captives in exchange for the release of Muslim captives from the infidels. According to the two disciples, this is lawful (and such also is the opinion of ash-Shāfiʿī), because this produces the emancipation of Muslims, which is preferable to slaying the infidels or making them slaves. The argument of Imām Abū Ḥanīfah is that such an exchange is an assistance to the infidels, because those captives will again return to fight the Muslims, which is a wickedness, and the prevention of this wickedness is preferable to effecting the release of the Muslims, since, as they remain in the hands of the infidels, the injury only affects them, and does not extend to the other Muslims, whereas the injury attending the release of infidel captives extends to the whole body of Muslims. An exchange for property (that is, releasing infidel prisoners in return for property) is also unlawful, as this is assisting the infidels, as was before observed, and the same is mentioned in the Maẕhabu ʾl-Mashhūr. In the Sairu ʾl-Kabīr it is asserted that an exchange of prisoners for property may be made where the Muslims are necessitous, because the Prophet released the captives taken at Badr for a ransom. If a captive become a Muslim in the hands of the Muslims, it is not lawful to release and send him back to the infidels in return for their releasing a Muslim who is a captive in their hands, because no advantage can result from the transaction. If, however, the converted captive consent to it, and there be no apprehension of his apostatizing, in this case the releasing of him in exchange for a Muslim captive is a matter of discretion. It is not lawful to confer a favour upon captives by releasing them gratuitously, that is, without receiving anything in return, or their becoming Ẕimmīs, or being made slaves. Ash-Shāfiʿī says that showing favour to captives in this way is lawful, because the Prophet showed favour in this way to some of the captives taken at the battle of Badr. The arguments of the Ḥanafī doctors upon this point are two-fold: First, it is said in the Qurʾān, ‘Slay idolaters wherever ye find them’; secondly, the right of enslaving them is established by their being conquered and captured, and hence it is not lawful to annul that right without receiving some advantage in return, in the same manner as holds with respect to all plunder; and with respect to what ash-Shāfiʿī relates that the Prophet showed favour in this way to some of the captives taken at the battle of Badr, it is abrogated by the text of the Qurʾān already quoted. (Hamilton’s Hidāyah, vol. ii. p. 160.)
IV.—Slave Traffic is not only allowed but legislated for by Muḥammadan law, and is clearly sanctioned by the example of the Prophet as given in the Traditions (see Ṣaḥīḥu Muslim, Kitābu ʾl-Buyūʿ, vol. i. p. 2). In the Law of Sale (see Raddu ʾl-Muḥtār. Hidāyah, Hamilton’s ed., vol. ii. p. 458), slaves, male and female, are treated merely as articles of merchandize. In chapters on sale, and option, and wills, the illustrations are generally given as regards slaves, and the same, or very similar, rules apply both to the sale of animals and bondsmen.
The following traditions (Mishkāt, book xiii. chap. xx.) with reference to the action of the Prophet in this matter are notable:—
“ʿImrān ibn al-Ḥusain said a man freed six slaves at his death, and he had no other property besides; and the Prophet called them, and divided them into three sections, and then cast lots; he then ordered that two of them should be freed, and he retained four in slavery, and spoke severely of the man who had set them free.”
“Jābir said we used to sell the mothers of children in the time of the Prophet, and of Abū Bakr; but ʿUmar forbade it in his time.”
V.—The Manumission or Slaves is permitted by Muḥammadan law under the following forms: (1) ʿAtāq (ʿAtq, Iʿtāq); (2) Kitābah; (3) Tadbīr; and (4) Istīlād.
(1) ʿAtāq, in its literal sense, means power, and in law expresses the act of the owner of a slave (either male or female) giving immediate and unconditional freedom to his slave. This act is lawful when it proceeds from a person who is free, sane, adult, and the actual owner of the slave in question. If such a person say to his slave, “Thou art free,” or “Thou art muʿtaq” or “Thou art consecrated to God,” or make use of any similar expression to his slave, the slave becomes ipso facto free, whether the owner really mean emancipation or not.
(2) Kitābah, literally “a writing,” signifies a bond of freedom granted to a slave (male or female), in return for money paid. It is founded on the teaching of the Qurʾān, [Sūrah xxiv. 33]: “And such of those as your right hands possess as crave a writing, write it out for them if ye know any good in them,” which precept is held to be recommendatory, although not injunctive. The slave thus ransomed is called mukātab, until the ransom is fully paid. During the interval between the promise of freedom and the payment of the money the mukātab enjoys a certain degree of freedom, but is nevertheless placed under certain restrictions. For example, although he is free to move from place to place, he cannot marry, or bestow alms, or become bail, or grant a loan, or make a pilgrimage, &c., without the permission of his master.
(3) Tadbīr signifies literally, “arrangement, disposition, plan,” but in the language of the law it means a declaration of freedom made to a slave (male or female), to take effect after the master’s death. If the owner of a slave say, “Thou art free at my death,” or “Thou art a mudabbir,” or words to that effect, the slave can claim his freedom upon the decease of his master, and any children born to him in the interval are placed in the position.