The Islamic State produced multiple publications relating to slavery and slave-women within the context of its mass enslavement of Yezidi women in 2014. Its reasoning for producing multiple short publications on the matter is explained at the conclusion of the treatise that is the subject of this post: namely, that the subject of Islamic rulings on enslavement is very vast but knowledge of the subject has been absent from the Muslims' reality in modern times, therefore it is necessary to teach the topic in parts so that it can be properly understood and accepted.
This particular publication on slavery and slave-women was produced years ago (second printing in July-August 2015 CE), and the analyst Shiraz Maher had suggested to me some time ago to translate it. I think this is a worthwhile endeavour for two reasons. First, it is useful in general for understanding the history of the Islamic State to have a full overview of the literature the group produced on this subject, helping to ensure that our picture of the mass enslavement is as accurate as possible. Second, the work itself is an interesting example of how the Islamic State has approached traditional jurisprudence and makes use of it to justify various positions the group adopts on particulars.
The work, which was specifically composed by the Islamic State's Fatwa-Issuing and Research Department (later the Office of Research and Studies) can be summarised as follows:
- Taking the women and children of the disbelievers at war as captives comes under the term sabi [/sabyun], which is synonymous with enslavement. The practice is legitimised by the Qur'an, Sunna and example of the Prophet and his companions. It is also supported by scholarly consensus.
- The slave-woman should be treated well.
- While scholars have disagreed on whether one take men of different categories of disbelievers as captives, there is no disagreement on taking women and children of the different categories of disbelievers as captives and enslaving them. The sole exception concerns the apostate woman, in which the majority of the scholars have taken the view that one should not take her as captive and enslave her. The Islamic State inclines to this view.
- It is permitted for the master to lie carnally with his slave-woman before she converts to Islam, even if she is not of the People of the Book (i.e. even if she is of non-Muslims besides Jews and Christians). Despite the fact that the majority of scholars say it is not permitted, the correct lines of evidence show that the slave-woman's conversion to Islam is not stipulated as the condition to lie carnally with her.
- If the slave-woman had a marriage contract with her husband before being taken captive, it is annulled when she is taken captive, regardless of whether her husband is taken with her.
- One should ensure the emptiness of the womb of the slave-woman before lying carnally with her through a process of waiting. If she is pregnant, then one is not to lie carnally with her until she gives birth. If she is not pregnant, then one should wait until she has a period. However, this waiting does not apply in situations where there is absolutely no possibility that she is pregnant (e.g. when she is a virgin).
- The slave-woman does not have an entitlement to sharing the bed with the master, though if she has a need for marriage/carnal conjugal rights, her owner should render it to her in some way (e.g. by lying carnally with her or marrying her off).
- What constitutes the slave-woman's private parts is slightly different from the free woman's private parts: most notably, the slave-woman can have her head uncovered, though if there is fear of sexual temptation caused by the slave-woman, she should be veiled.
Effectively, the treatise takes a 'pick-and-mix' approach to the scholarly jurisprudence and opinions on certain particulars (though certainly does not constitute a rejection of the traditional four schools of jurisprudence). The clearest example is the issue of whether one can lie carnally with the polytheist women before their conversion to Islam. It would seem that in this case, the position taken in the treatise derives more from the circumstances in which the women taken captive by the Islamic State were of a religious group not deemed to be People of the Book: it would be unrealistic to impose conversion on all of them to Islam, but at the same time, their captors wish to exploit them to fulfil their own lusts, so it is decided to permit lying carnally with the slave-women even if they have not converted to Islam.
Below is the work translated in full with the original text. Any parenthetical insertions in square brackets are my own.
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al-Himma Library
Islamic State
Sabi: Rulings and Issues
Office of Research and Studies
Sabi: Rulings and Issues
Office of Research and Studies
al-Himma Library
al-Himma Library
Islamic State
Caliphate on the Prophetic Methodology
Second Printing
Shawwal 1436 AH
Introduction
In the name of God, the Compassionate, the Merciful
Praise be to God who says: 'He is the One who has sent His Messenger with the guidance and the religion of truth to make it supreme over all religion, even if the idolaters hate it'- (al-Tawba 33). And prayers and peace be upon the one who says: 'And humiliation and lowliness have been brought upon the one who has contravened my order'- (brought out by Ahmad). As for what follows:
Abu Dawud and others besides him have brought out on the authority of Abu Huraira (may God be pleased with him) that the Messenger of God (SAWS) said: 'Indeed God sends to this Ummah every century the one who will revive for it its religion.'
And God- Exalted and Almighty is He- has prepared in this century of time men who expended what is precious and cheap and established the Islamic State, and built the edifice of the Caliphate, and have brought renewal in the entire religion, and have put in place judges and muftis, and preachers and enforcers of Hisba, and have opened the courts for the litigants, and have taken Zakat from the owners of it and expended it on its masarif, and have imposed the jizya on the People of the Book and compelled them by the conditions of the Pact of Omar, and have taken women and children of the disbelievers as sabaya. So praise be to God first and last.
And they did not have us marry their girls in obedience to them, but we took them in marriage through the force of our swords.
And as this aspect of 'Ilm has been abandoned, we in the 'Diwan al-Buhuth wa al-Ifta" have decided to write a summarised message that makes the Muslim aware of some of its rulings, and will make him understand its most important issues, and we have called the message: 'Sabi: Rulings and Issues.' And God is the one behind the intention and He guides to the path. And God is our reliance and excellent He is as trustee.
Office of Research and Studies
1. Defining sabi as a linguistic and technical term:
Sabi as a linguistic term: captivity, and it is said: he saba the enemy and others besides him as sabi and siba', when he takes them captive, so it is sabi on the pattern of fa'il for the masculine, and sabi [sabyun] and sabiyya and masbiyya for the feminine, while the feminine plural is sabaya. And for the boy it is sabi [sabyun] and masbi- (see Lisan al-Arab, al-Masbah al-Munir, al-Qamus al-Muhit).
As for sabi as a technical term: the jurists generally specify sabi for those the Muslims take from the women and children of the people of war, while asr [prisoners] for those they take of their men.
So they say for example: 'War spoils includes types: prisoners [asra], sabi, lands and wealth. As for the prisoners, they are the fighting men of the disbelievers when the Muslims capture them alive. As for the sabi, they are women and children...' (see: al-Ahkam al-Sultaniya by al-Mawurdi p. 131, and al-Ahkam al-Sultaniya by Abu Ya'ala 141).
2. Applying sabi to enslavement:
In view of the aforementioned linguistic and technical definition it becomes clear there is a difference between sabi and asr- which is the the application of taking and captivity- and enslavement, for it is considered a stage that follows sabi (see: Lisan al-Arab subject: r-q-q).
But as we know that most of the Ahl al-'Ilm specify the term sabi to the taking of the women of the disbelievers and their children, then we know that many of the jurists consider that enslavement of women and children occurs by merely their sabi and taking them even if the Imam has not ruled on them for enslavement (as is the case with the Shafi'is and Hanbalis, and see: al-Mahdhab 2/236 and al-Mughanni 13/44). So it has become clear to us why the noun sabi is applied to enslavement and it becomes synonymous with it in the expressions of many of the 'ulama.
3. The legitimacy of sabi:
Sabi is legitimate by the Book, Sunna and consensus, and only some of the modernists and innovators have disagreed on its legitimacy!
God Almighty has said: 'And the chaste from the women, except what your right hands have possessed'- (al-Nisa' 24).
al-Emad Ibn Kathir- may God have mercy on him- said in his tafsir: 'That is, He has forbidden for you the foreign chaste women who are the married ones; 'except what your right hands have possessed': that is, except what you have possessed in sabi, so He permits for you lying carnally with them if you have made sure they are not pregnant, for the verse has come down for that.'
Imam Ahmad said: 'Abd al-Razzaq told us: Sufyan- that is, al-Thawri- informed us on the authority of Othman al-Batti, on the authority Abu al-Khalil, on the authority of Abu Sa'id al-Khudri- may God be pleased with him- who said: 'We captured women from the sabi of Awtas, and they had husbands, so we disliked the idea of lying carnally with them as they had husbands. So we asked the Prophet (SAWS), so this verse came down:
'And the chaste from the women, except that your right hands have possessed.' He said: so we deemed their private parts permissible to us.
And thus did al-Tirmidhi narrate it on the authority of Ahmad bin Mani', on the authority of Hushaim, and al-Nisa'i narrated it from the hadith of Sufyan al-Thawri and Shu'aba bin al-Hujjaj, the three of them on the authority of Othman al-Batti. And Ibn Jarir narrated it from a hadith of Ash'ath bin Sawari on the authority of Othman al-Batti. And Muslim narrated it in his Sahih collection from the hadith of Shu'aba bin Qutada, both of them on the authority of Abu al-Khalil Saleh bin Abi Maryam, on the authority of Abu Sa'id al-Kuhdri. So he mentioned it. And Abd al-Razzaq narrated it on the authority of Mu'ammar, on the authority of Qutada on the authority of Abu al-Khalil, on the authority of Abu Sa'id.'
And God Almighty has said: 'And those who guard over their private parts, except for their wives or what their right hands have possessed, they are not to be condemned. But the one who seeks to go beyond that, those people are the transgressors'- (al-Mu'minun 5-7).
Imam al-Tabari- may God have mercy on him- said in his tafsir: '...on the authority of Ibn Abbas, His [God's] words: 'And those who guard over their private parts, except for their wives or what their right hands have possessed, they are not to be condemned.' He says: 'God has been content for them to lie carnally with their wives and what their right hands have possessed.
And His words: 'But the one who seeks to go beyond that.' He says: The one who seeks for his private part a carnal relation besides his wife and the possession of his right hand; 'And those people are the transgressors.' He says: 'So they are the ones transgressing the limits of God, and transgressing what God has permitted for them to what He has forbidden to them.'
And on the authority of Anas (may God be pleased with him): that the Messenger of God (SAWS) carried out an expedition against Khaybar and we prayed there the morning prayer in semi-darkness so the Prophet of God (SAWS) rode on horseback and Abu Talha rode on horseback and I was helping Abu Talha so the Prophet of God (SAWS) rode in the allies of Khaybar and indeed my knee was touching the thigh of the Prophet of God (SAWS) then the covering from his thigh fell such that I saw the whiteness of the thigh of the Prophet of God (SAWS) so when he entered the village he said: 'God is greatest. Khaybar has been destroyed. When we come down to the field of an enemy people, evil has been the morning of those warned.' He said it three times. He [Anas] said: And the people came out to their work so they said Muhammad has come. Abd al-Aziz said and some of our companions said: and al-khamees, meaning the army. He [Anas] said: So we took it by force, so the sabi was gathered. So Duhaiya came and said: oh Prophet of God, give me a girl from the sabi. He said: Go and take a girl.
So he took Safiyya the daughter of Huyayy so a man came to the Prophet (SAWS) so he said: oh Prophet of God, you have given Duhaiya Safiyya the daughter of Huyayy, the lady of Qurayza and al-Nadir, who is only suitable for you. He said: 'Summon him with her.'
So he brought her so when the Prophet (SAWS) saw her, he said: 'Take a girl besides her from the sabi.'
He said: 'So the Prophet (SAWS) freed her and married her. So Thabit said to him: oh Abu Hamza, what did he give as a dower for her? He said: she herself he freed and married even when he was on the road, Umm Sulaym prepared her for him so she gave her to him by the night, so the Prophet (SAWS) became a bridegroom in the morning, so he said: 'Whoso has something, let him bring it.'
And he spread a mat so the man became to bring dates and the man began to bring butter. He said: 'And I reckon he mentioned the mush. He said: 'So they prepared hais for it was the feast of the Messenger of God (SAWS)'- (agreed upon).
Imam Ibn al-Qayyim (may God have mercy on him) said: 'And most of those who were the sabaya of the companions in the time of the Prophet (SAWS) were of the worshippers of the idols and the Messenger of God (SAWS) established them on the possession of the sabi, and Abu Bakr al-Siddiq paid to Salima bin al-Akwa' (may God be pleased with them both) a woman from the sabi as a present for him and she was of the worshippers of the idols and Omar and his son (may God be pleased with them both) took from the sabi of Hawazin and likewise others besides them from the companions. And this Hanifite woman Umm Muhammad bin Ali is of the sabi of the Banu Hanifa'- (Ahkam Ahl al-Dhimma 1/21).
4. The command to treat the sabaya and the possession of the right hand well:
God Almighty has said: 'And worship God and do not associate anything as partner with Him and treat well the parents, relatives, orphans, poor, near and far neighbours, the companion at your side, the wayfarer and what your right hands have possessed. Indeed God does not like the haughty and arrogant'- (al-Nisa' 36).
Imam al-Qurtubi (may God have mercy on him) said in his tafsir: And the Almighty's words: 'And what your right hands have possessed.' God Almighty has commanded treating well the things you possess, and the Prophet (SAWS) made that clear, for Muslim and others besides him on the authority of al-Ma'rur bin Suwaid who said: we came by Abu Dharr in al-Rabdha and on him was a mantle and his slave boy had one like it. So we said: oh Abu Dhir, if you had joined them together, it would have been a complete garment. He said: there were words between me and a man of my brothers. And his mother was non-Arab so I cursed him on account of his mother. So he complained about me to the Prophet (SAWS), so I met the Prophet (SAWS) and he said: 'Oh Abu Dharr, you are a man in whom there is Jahiliya.' I said: oh Messenger of God, whoso curses men, they curse his father and mother.'
He said: 'Oh Abu Dharr, you are a man in whom there is Jahiliya. They are your brothers whom God has placed under your hands, so feed them of what you eat, and dress them of what you wear, and do not entrust them with what overwhelms them, so if you entrust them, help them.'
And it has been narrated on the authority of Abu Huraira that he rode a she-ass one day and he joined his slave boy behind him, so someone said to him: 'Why don't you put him down striving behind your she-ass?' Abu Huraira said: 'Because for two bundles of fire to strive with me destroying by fire from me what they have destroyed- is more desirable for me than that my slave boy should strive behind me.'
And Abu Dawud brought out on the authority of Abu Dharr who said: the Messenger of God (SAWS) said: 'Whoso is agreeable to you from your possessions, feed him with what you eat and clothe him with what you wear, and whoso is not agreeable to you of them, sell him and do not torture the creation of God.'
layamakum: agreeable to you
al-mala'ima: being agreeable
Muslim narrated on the authority of Abu Huraira (may God be pleased with him) on the authority of the Prophet (SAWS) who said: 'The one possessed is to have his food and clothing and should only be entrusted with the work he is capable of.' And the one upon whom be peace said: 'Let none of you say: my slave and slave woman; but rather let him say: my boy and my girl.'
So SAWS required masters to show good manners and encouraged them to it and guided them to engage in good treatment and to follow the path of humbleness such that they should not see for themselves an advantage over their slaves, for all are slaves of God and the wealth is the wealth of God, but He has made some of them subservient to others, and He has made some of them be owned by others, in fulfilment of the bounty and in implementation of the wisdom. So if they feed them less than what they eat, and clothe them with less than what they wear in terms of quality and extent, it is permitted so long as he [the master] undertakes his obligation towards him [the slave]. And there is no disagreement on that, and God knows best.
And Muslim narrated on the authority of Abdullah bin Amro: when a steward of his came to him, he entered and said: Have you given the slaves their provision? He said: No. He said: go and give it to them. The Messenger of God (SAWS) said: 'This sin is enough for man: that he keeps away from those he possesses their provision.'
And on the authority Umm Salama who said: It was of the last testament of the Messenger of God (SAWS): 'Prayer prayer, and what your right hands have possessed'- such that the Prophet of God (SAWS) began brandishing them in his chest, and what his tongue dwelled at length on'- (brought out by Ahmad).
Imam al-Shawkani (may God have mercy on him) said: 'His words: 'Prayer and what your right hands have possessed.' That is, preserve prayers, and do good to those you possess'- (Nil al-Awtar 7/6).
5. Does sabi apply to women of the People of the Book only or to all the idolatrous women?
The one who follows the words of the Ahl al-'Ilm in their various jurisprudence madhhabs will find that they disagree on the permissibility of enslaving some of the categories of men of the disbelievers- and in this case can one enslave the one from whom and the one from whom the jizya is not accepted or is that enslavement is particular to the one from whom the jizya is accepted only? Thus it is in long disagreement according to lineage or religion (see: al-Fatawa al-Kubra 3/111).
But they agree on the permissibility of enslaving all types of women: the People of the Book, the Majus and the idolaters of them, Arabs or non-Arabs (see: al-Mawsu'a al-Fiqhiya 3/299).
For the Hanafis who do not consider it permissible to enslave the idolaters of the Arabs, we find them saying for example: 'And if supremacy is gained over them'- that is, over the idolaters of the Arabs and the apostates- 'their women and children are booty' who can be enslaved, because he (prayers and peace be upon him) enslaved the children of Awtas and the Hawazin and Abu Bakr enslaved the Banu Hanifa'- (see: Fath al-Qadir by Ibn al-Himam 6/46 and Hashiyat Ibn Abideen 6/321 and Bada'i' al-Sana'i' 9/481).
And likewise the Malikis, we find this distinction among them: for it has come in Hashiyat al-Adawi ala Sharh Kifayat al-Talib: 'Ibn al-Hajib said: and if they take prisoner Arabs or non-Arabs, the Imam is to be made to choose out of five things: killing, enslavement, imposing jizya, ransom or benevolence in consideration.
And these aspects are with regards to the fighting men. As for the children and women, they can only be enslaved, ransomed or freed'- (Hashiyat al-Adawi 3/13, and see: Sharh al-Kharashi ala Khalil 3/121, and al-Thamar al-Dani Sharh Risalat Ibn Abi Zayd al-Qayrwani 347, and al-Taj wa al-Iklil li-Mukhtasir Khalil 5/164).
As for the Shafi'is, when they have mentioned female prisoners of the disbelievers, they do not delve into explanation, but rather they make their enslavement as a given by merely sabi and taking, while the explanation is on mature males, which shows their agreement with the rest of the madhhabs on this concept.
Imam al-Shirazi said: 'Section: and if one takes prisoner a free woman or free youth, that person becomes a slave by imprisonment, because the Prophet (SAWS) divided the sabi of Banu al-Mustaliq and chose Safiya from the sabi of Khaybar, and divided the sabi of Hawazin then the Hawazin asked him to forgo so he forwent and he asked the people to forgo so they forwent. And if a mature free male is taken prisoner from the people of fighting, it is for the Imam to choose what he considers as appropriate from killing or enslavement and benevolence and ransom...and if he considers to enslave him, so if he is of the non-Arabs consideration is to be taken, for if he is from those who have a book or quasi-Book, he is to enslave that person...and if he is of the worshippers of the idols, two aspects apply to him, one of them: the pronouncement of Abu Sa'id al-Istakhari that it is not permitted to enslave them because it is not allowed to establish these people on disbelief through jizya so it has not been permitted to enslave them, as is the case with the apostate. The second view is that it is permitted because of what we have narrated on the authority of Ibn Abbas and because the one to whom benevolence in imprisonment is permitted, his enslavement is permitted as is the case with the People of the Book. And if he is of the Arabs, two pronouncements apply to him. He [Imam al-Shafi'i] said in al-Jadid: it is permitted to enslave him and hold him for ransom and that is the correct view because the one of the prisoners to whom benevolence and holding for ransom are permitted, that person's enslavement is permitted as is the case with the non-Arabs. And he said in al-Qadim: it is not permitted to enslave him'- (al-Mahdhab 2/236, and see: al-Umm by al-Shafi'i 3/172, and Nihayat al-Muhtaj 8/65).
And what the Hanbalis stipulate in the well-known position adopted in their books is not far removed from this detailing as well, for the differentiation is clear between the rulings on the prisoners from the women and children of the disbelievers on the one hand and their men on the other, in terms of whether one can enslave them or not.
Imam Ibn Qudama (may God have mercy on him) said: 'And its summation is that whoso is taken prisoner from the people of war is of three types:
One of them: the women and youth. It is not permitted to kill them and they become slaves for the Muslims by mere sabi because the Prophet (God's peace and blessings be upon him and his family) forbade killing he women and children (agreed upon), and he (peace be upon him) would enslave them when he made them sabi.
Second: the men of the People of the Book and the Majus who admit jizya, the Imam is to be made to choose regarding them between four options: killing, benevolence without recompense, ransoming them, and enslaving them.
Third: the men from the worshippers of the idols and others besides them who do not admit jizya, the Imam is choose regarding them between three options: killing, benevolence and ransom. And it is not permitted to enslave them, and on the authority of Ahmad is the permissibility of enslaving them and it is the view of al-Shafi'i...'- (see: al-Mughanni 13/44, al-Sharh al-Kabir ma al-Insaf 10/395).
Therefore, enslavement occurs for all types of women- whether of the People of the Book or the idolater- by agreement of the jurists in terms of the totality.
6. Is it permitted to lie carnally with the sabaya of the People of the Book and others besides them of the idolatrous women by possession of the right hand before they convert to Islam?
Regarding the sabaya of the People of the Book, it is permitted to lie carnally with them by possession of the right hand per the agreement of the predecessors even if they do not convert to Islam. The Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'Lying carnally with the slave-women of the People of the Book by possession of the right hand is more firmly established than lying carnally with them through the possession of marriage in the general view of the Ahl al-'Ilm of the four imams and others besides them, and the prohibition on that has not been mentioned by any of the predecessors'- (al-Fatawa al-Kubra 2 Kitab al-Nikah).
As for lying carnally with the idolatrous women [i.e. those not of the People of the Book] by possession of the right hand before they convert to Islam, the majority of the Ahl al-'Ilm from the four and others besides them have forbidden it and indeed the contrary of this pronouncement has been charged with deviation!
The Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'Then the four imams agree that lying carnally is to be after Islam, and that lying carnally with the idolatrous woman [i.e. not of the People of the Book] is not permitted, just as it is not permitted to marry her.'
Imam al-Qurtubi (may God have mercy on him) said in his tafsir on the Almighty's words- 'And do not perform nikah with the idolatrous women until they believe'- (al-Baqara 221)- addressing the disagreement: 'And Ibn Wahab narrated on the authority of Malik that it is not permitted to lie carnally with the Majusi slave-woman by virtue of possession of the right hand, and likewise the idolatrous women [i.e. not of the People of the Book] and others of the disbelieving women. And on this opinion is the group of the 'ulama, except what Yahya bin Ayyub narrated on the authority of Ibn Juraij on the authority of Ata and Amro bin Dinar that they were asked about carnal relations with the Majusi slave-women so they said: there is no objection to that.
And in interpreting the words of God (Almighty and Exalted is He): 'And do not perform nikah with the idolatrous women.' This in the view of these two people applies to the marriage contract and not to the bought slave-woman, and they have cited the example of sabi of Awtas, and that the companions lay carnally with the slave-women among them by possession of the right hand.
al-Nahhas said: And this is a deviant pronouncement. As for the sabi of Awtas, it may be that the slave women had converted to Islam so carnal relations with them were permitted. As for argument about the Almighty's words: 'And do not perform nikah the idolatrous women until they believe'- it is mistaken. Because they have applied the meaning of nikah to the marriage contract, but nikah in the language means the marriage contract and carnal relations. So when He said: 'And do not perform nikah with the idolatrous women'- He forbade all nikah with the idolatrous women from marriage contract and carnal relations.
And Abu Omar bin Abd al-Barr said: and al-Awza'i said: I asked al-Zuhri about the man who buys the Majusi woman: can he have carnal relations with her? He said: if she bears witness that there is no deity but God, he can have carnal relations with her. And on the authority of Yunis on the authority of Ibn Shihab who said: it is not allowed for him to have carnal relations with her until she converts to Islam.'
Abu Omar said: the pronouncement of Ibn Shihab- it is not permitted for him to have carnal relations with her until she converts to Islam. This- and he is the most knowledgeable of people on the expeditions and the lives- is evidence of the corruption of the pronouncement of the one who claims that the sabi of Awtas is carnal relations even as they did not convert to Islam.
And that has been narrated from a group of them: Ata' and Amro bin Dinar who said: there is no objection to lying carnally with the Majusi woman. And none of the jurists in the lands paid heed to this view.
And it has come on the authority of al-Hasan al-Basri (and he is of those who conducted invasions and the people of his district conducted invasions: those invasions only were against the Persians and what is beyond them from Khorasan and no one of the People of the Book was among them) what makes clear to you how their women were dealt with when they were taken as sabi. He said: Abdullah bin Muhammad bin Asad informed us: he said: Ibrahim bin Ahmad bin Firas informed us, and he said: Ali bin Abd al-Aziz informed us, and said: Abu Obeid informed us, and said: Hisham informed us on the authority of Yunis on the authority of al-Hasan: he said: a man said to him: Oh Abu Sa'id, how did you deal with the women when you took them as sabaya? He said: we would direct the woman towards the Qibla and order her to convert to Islam and bear witness that there is no deity but God and that Muhammad is the Messenger of God. Then we order her to perform a ritual bath, and if her owner wants to lie carnally with her he does not do so until he makes sure her womb is empty.
And on this basis is the interpretation of the group of the 'ulama regarding the words of God Almighty: 'And do not perform nikah with the idolatrous women until they believe.' That they are the idolatrous women and the Majusi women [i.e. not of the People of the Book], because God Almighty has permitted the women of the People of the Book by His words: 'And the chaste women of those who have been given the Book before you.' This means the chaste ones, not the ones of the women of the People of the Book renowned for their fornication. And among them are those who disliked marriage of her and carnal relations with her by possession of the right hand so long as there was no repentance from them, because of the corruption of lineage entailed.'
And on this issue a number of the erudite of the 'ulama have disagreed, like Sa'id bin al-Masib and Tawous and Ata' and Abu Thawr and Amro ibn Dinar and it has been transmitted from Mujahid and the Sheikh of Islam Ibn Taymiyya and his student Ibn al-Qayyim supported him. So they permitted lying carnally with the idolatrous woman, and they cited for it strong lines of evidence and it is a distinguished pronouncement (see: Ikhtayarat Sheikh al-Islam Ibn Taymiyya al-Fiqhiya 8/383).
Imam Ibn al-Qayyim (may God have mercy on him) said: 'Muslim in his Sahih collection narrated from Abu Sa'id al-Khudri (may God be pleased with him) that the Messenger of God (SAWS) sent an army to Awtas and found an enemy so they fought them and gained victory over them and took sabaya captive and it was as though people from the companions of the Messenger of God (SAWS) had objections to lying carnally with them on account of their spouses from the idolaters. So God (Almighty and Exalted is He) revealed a verse on that: 'And the chaste from the women except what your right hands have possessed.' That is: they are permitted to you when their 'idda passes.
And this prophetic judgement has indicated the permissibility of lying carnally with the idolatrous women by possession of the right hand, for indeed the sabaya of Awtas ('And the chaste from the women except what your right hands have possessed') were not women of the People of the Book and the Messenger of God (SAWS) did not make their conversion to Islam as a condition for lying carnally with them, and he placed no objection to it except that they should not be pregnant. And delaying the clarification of the issue beyond the time of need is impossible given that they are new converts to Islam such that the ruling of this issue was hidden to them. And for all the sabaya to convert to Islam as they were several thousand in number, in that no girl among them refrained from Islam, is of what is known to be very unlikely, for they were not compelled to Islam and they had no insight, desire and affection in Islam.
That thing requires their taking the initiative to do so entirely, so the necessary conclusion drawn from the Sunna and the work of the Companions in the time of the Messenger of God (SAWS) and after it is that it is permissible to lie carnally with the girls possessed regardless of their religion, and this is the position of Tawous and others besides him...
And what shows the lack of condition of their conversion to Islam, is what Tirmidhi narrated in his collection from Irbadh bin Sariya that the Prophet (SAWS) forbade lying carnally with the sabaya until they should give birth to what is in their wombs, so he made one thing as equating with prohibition and it is giving birth from a state of pregnancy, and had the matter been dependent on Islam, its affirmation would have been more important than the affirmation of making sure the woman is not pregnant.
And in the Sunan and al-Musnad on his authority: 'It is not permitted for a man who believes in God and the Last Day to lie carnally with a woman from the sabi until he makes sure she is not pregnant.' And it was not said until she converts to Islam. And per Ahmad: 'Whoso believes in God and the Last Day should not lie carnally with anything of the sabaya until she has a menstrual period.' And he did not say: and she converts to Islam.
And in the Sunan on his authority: that he said on the sabaya of Awtas: 'One should not lie carnally with a pregnant woman until she gives birth, not with a non-pregnant woman until she has one menstrual period.' And he did not say: and she converts to Islam. So there has not come on his authority the conditioning of Islam of the masbiyya in any place at all!'- (Zad al-Ma'ad 5/132).
And Imam al-Shawkani (may God have mercy on him) said in al-Nil fi Bab Istibra' al-Amma Idha Mulikat as follows: 'What is apparent from the hadiths on the matter is that it is not conditional in the permissibility of lying carnally with the masbiyya that she should convert to Islam. And had it been a condition it would have been affirmed by SAWS but he did not affirm it, and it is not permitted to delay the affirmation beyond the time of need and that was at the time of it, especially among the Muslims on the Day of Hunayn and others besides them who were new converts to Islam for whom the likes of this ruling would be hidden. And making the arising of Islam from all the sabaya as the condition when they are very numerous is very unlikely, for the conversion to Islam of the likes of this number of masbiyyas in Awtas as one contingent without compulsion, no reasonable person can assert that this is the correct imposition of condition for the matter.
And among the greatest signs of support for the masbiyyas remaining on their religion is what has been established from SAWS' returning of them after there came to a him a group from Hawazin and asked him to return to them the war spoils he had seized from them, so he returned to them the sabi only. And a group have taken the view that it is permitted to lie carnally with the disbelieving masbiyyas after the legitimate verification that they are not pregnant, among them Tawus and it is apparent for what has preceded'- (Nil al-Awtar 6/365).
7. Ruling on sabi of the apostate woman:
The Ahl al-'Ilm have differed on the ruling of sabi of the apostate woman under a refraining sect or who has joined the abode of war, as per two pronouncements:
The majority of the Ahl al-'Ilm have taken the view that the apostate woman only has the options of Islam or the sword, whether she is in the abode of Islam or she has joined the abode of war.
Imam Ibn Qudama (may God have mercy on him) said: 'And its summation is that enslavement does not arise for the apostate- whether he is man or woman, and whether he has joined the abode of war or is living in the abode of Islam. And thus asserted al-Shafi'i, and Abu Hanifa said: if the apostate woman joins the abode of war, it is permitted to enslave her because Abu Bakr made captive the Banu Hanifa and enslaved their women and Umm Muhammad bin al-Hanifa is among their sabi.
And we have the words of SAWS: 'Whoso changes his religion, kill him.' And because it is not permitted to establish him on his disbelief, it has not been permitted to enslave him as the man, and it has not been established that those whom Abu Bakr took captive had converted to Islam and it has not been established that the ruling of apostasy. But if it has been said, it has been narrated on the authority of Ali that the apostate woman is to be made sabiyya, we say this hadith is weak and was deemed so by Ahmad...'- (al-Mughanni 10/89).
And some of the Ahl al-'Ilm have taken the view that she is to be made sabiyya.
The judge Abu Yusuf (may God have mercy on him): 'And if it should be the case that the apostates have been deprived of the abode, their women and children can be taken captive and compelled to Islam, just as Abu Bakr (may God be pleased with him) took captive the children of those who apostasised from Islam from the Banu Hanifa and others besides them, and just as Ali bin Abi Talib (may God be pleased with him) took captive the Banu Najih in agreement with Abu Bakr, and the kharaj is not to be imposed on them, and if they convert to Islam before fighting and before power is gained over them, they are to have their blood and wealth spared and they are to be excused from sabi, and if power is gained over them then they convert to Islam, they are to have their blood spared and there comes upon them the ruling of siba' on the youth and women.
As for the men, they are free and not to be enslaved...and there is not upon men from the people of apostasy or from the worshippers of the idols sabi or jizya, but rather killing or Islam, and all of those upon whom are killing or Islam and then the Imam gains supremacy over their abode, the children can be taken captive and the men are killed and the war spoils are divided, and if the Imam abandons siba' and the wealth, it is in the realm of capacity'- (Kitab al-Kharaj p. 67).
And the Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'And likewise the 'ulama have disagreed on enslavement of the apostate woman, and a group say that she is to be enslaved like the pronouncement of Abu Hanifa, and a group say that she is not to be enslaved like the pronouncement of al-Shafi'i and Ahmad. And what is known from the companions is given greater weight and it is that the apostate women among them are enslaved, for indeed the Hanifite woman whom Ali bin Abi Talib (may God be pleased with him) took as captive, the mother of his son Muhammad bin al-Hanifiya is of the sabi of the apostate Banu Hanifa whom Abu Bakr al-Siddiq (may God be pleased with him) and the companions fought, when Khalid bin al-Waleed was sent to fight them'- (al-Fatawa al-Kubra 3/129).
And the disagreement on the matter is strong, but we incline to the pronouncement of the majority, and it is: it is not permitted to make sabi of the apostate woman, on account of the apparent meaning in the words of the Prophet (SAWS): 'Whoso changes his religion, kill him'- (brought out by the six except Muslim). And his words: 'Indeed women are the siblings of men'- (brought out by the five except al-Nisa'i). So the ruling on the apostate woman is like the ruling of the apostate man: Islam or the sword!
As for the issue of Muhammad bin al-Hanifiya (may God have mercy on him) and that is that his mother is of the sabi of Banu Hanifa, al-Waqidi narrated: Ibn Abi al-Zinad told me on the authority of Hisham bin Urwa on the authority of Fatima bint al-Mundhir, on the authority of Asma', she said: 'I saw al-Hanafiya and she was black, unveiled, of fine hair...'
And the fact she is black gives weight to the fact that she is of the slave women of the Banu Hanifa and not of them, as blackness among the Arabs is rare! Therefore, she is of the wealth that was taken as spoils from the apostates and divided, so al-Hanafiya was of the share of Ali bin Abi Talib (may God be pleased with him) and God knows best.
8. Some of the rulings connected with the sabiyya:
1. Is the marriage contract of the sabiyya with her husband dissolved merely by her sabi?
The state of the sabiyya is either that she is taken as sabiyya alone or her husband is taken captive with her.
If she is taken as sabiyya alone, the marriage contract is dissolved without disagreement among the jurists. And Muslim narrated in his Sahih collection on the authority of Abu Sa'id al-Khudri (may God be pleased with him) that the Messenger of God (SAWS) sent an army to Awtas and found an enemy so they fought them and gained victory over them and took sabaya captive and it was as though people from the companions of the Messenger of God (SAWS) had objections to lying carnally with them on account of their spouses from the idolaters. So God (Almighty and Exalted is He) revealed a verse on that: 'And the chaste from the women except what your right hands have possessed.' That is: they are permitted to you when their 'idda passes.
. If taken captive together, the Ahl al-'Ilm have disagreed on that per two pronouncements:
1. That their marriage contract remains and is not dissolved by sabi and it is the pronouncement of the Hanafis and Hanbalis. They said this because the verse- 'And the chaste from the women except what your right hands have possessed'- came down regarding the sabaya of Awtas, and they had taken the women without their spouses, and other things besides that from their lines of evidence... (see: Bada'i' al-Sana'i' 2/339 and al-Mughanni 13/113).
2. That their marriage is dissolved by merely sabi and it is the pronouncement of the Malikis, Shafi'is and al-Thawri and al-Layth and Abu Thawr.
Imam al-Shafi'i (may God have mercy on him) said: 'The Messenger of God (SAWS) took captive the Awtas and Banu al-Mustaliq and divided the booty, and he ordered that one should not lie carnally with a pregnant woman until she gives birth, nor a non-pregnant woman until she has a menstrual period, and he did not ask about whether the girl is married or other things besides it'- (al-Mahdhab 3/383).
And Imam Ibn al-Qayyim (may God have mercy on him) said regarding the hadith of the sabaya of Awtas: 'This ruling has included the permissibility of lying carnally with the masbiyya even if she has a husband from the disbelievers, and this shows the dissolving of his marriage contract and disappearance of the bond of carnal relations with his wife, and this is the correct view because he has taken the place of his right and has taken his wife's neck and so her holder in captivity becomes more entitled to her than he [her former husband] is, so how can carnal relations with her be forbidden to him? So this pronouncement is not contradicted by a text stipulation or an analogy.
And those of the companions of Ahmad and others besides them who have asserted that lying carnally with her is permitted when she is taken captive alone have said this is because the husband's survival is unknown, and the unknown is like the one lacking, so lying carnally with her is permitted after ensuring she is not pregnant. But if the husband is with her, lying carnally with her is not permitted while he remains. So I ask them in response: what if she is taken captive by herself and we become certain that her husband remains in the abode of war, do they then permit lying carnally with her? They responded in a way that is of no use. And they said: the principle is the joining of the individual to the predominant general scenario, so it is said to them: the predominant general scenario is that the husbands of the masbiyyas remain when they are taken on their own and the death of all of them is very rare. Then it is to be said: if the neck of her husband and his property the ownership of the one taking her captive and the sacrosanctity disappears from the rest of his property and from her neck, what is the thing that necessitates the establishment of the bond in the private parts of his wife, particularly as she and their property have gone to the one taking captive?!'- (Zad al-Ma'ad 5/118).
2. Making sure the womb of the sabiyya is empty [a process called istibra']:
Imam Ibn al-Qayyim (may God have mercy on him) produced on this an investigative chapter in the book Zad al-Ma'ad. We confine ourselves to it for its sufficiency and great benefit. He (may God have mercy on him) said:
'The mentioning of the judgement of the Messenger of God (SAWS) on ensuring the womb's emptiness:
It has been established in Sahih Muslim: from the hadith of Abu Sa'id al-Khudri (may God be pleased with him) that the Messenger of God (SAWS) on the day of Hunayn sent an army to Awtas and found an enemy so they fought them and gained victory over them and took sabaya captive and it was as though people from the companions of the Messenger of God (SAWS) had objections to lying carnally with them on account of their spouses from the idolaters. So God (Almighty and Exalted is He) revealed a verse on that: 'And the chaste from the women except what your right hands have possessed.' That is: they are permitted to you when their 'idda passes.
And in his Sahih collection as well: from a hadith of Abu al-Darda' (may God be pleased with him) that the Prophet (SAWS) passed by a woman in advanced pregnancy at the gate of a camp. So he said: 'Perhaps he wishes to lie carnally with her.' They said: Yes. So the Messenger of God (SAWS) said: 'I should wish to curse him with a curse that enters with him into his grave. How can he bequeath to him in inheritance when he is not permitted to him? How can he use him when he is not permitted to him?'
And in al-Tirmidhi: from the hadith of Irbadh bin Sariya: that the Prophet (SAWS) forbade lying carnally with the sabaya until they give birth to what is in their wombs.
And in 'al-Musnad' and the Sunan of Abu Dawud: from the hadith of Abu Sa'id al-Khudri (may God be pleased with him): that the Prophet (SAWS) said on the sabaya of Awtas: 'One should not lie carnally with a pregnant woman until she gives birth, nor with a non-pregnant until she has a period.'
And in al-Tirmidhi: from the hadith of Ruwayfa' bin Thabit (may God be pleased with him): that the Prophet (SAWS) said: 'Whoso believes in God and the Last Day, let him not make a child besides his own drink his water.' And al-Tirmidhi said: sound hadith.
And from Abu Dawud, from his hadith as well: 'It is not permitted for a man who believes in God and the Last Day to lie carnally with a woman from the sabi' until he makes sure her womb is empty.'
And from Ahmad: 'Whoso believes in God and the Last Day, let him not lie carnally with a widow [/divorcee] from the sabaya until she has a period.'
And al-Bukhari mentioned in his Sahih collection: Ibn Omar said: 'If the girl is granted that one can lie carnally with, or she is sold, or she is freed, let it be ensured her womb is empty through a period, and the virgin is not to have her womb assured of emptiness.'
And Abd al-Razzaq mentioned on the authority of Mu'ammar, on the authority of Amro bin Muslim, on the authority of Tawus: The Messenger of God (SAWS) sent a caller in some of his expeditions: 'Let no man lie carnally with a pregnant woman, or a non-pregnant woman until she has a period.'
And it has been mentioned on the authority of Sufyan al-Thawri, on the authority of Zakariya, on the authority of al-Sha'abi: he said: the Muslims captured sabaya on the day of Awtas, so the Messenger of God (God's peace and blessings be upon him and his family) ordered them not to lie carnally with a pregnant woman until she gives birth, or a non-pregnant woman until she has a period.
Section:
So these Sunan have included a number of rulings:
One of them: that it is not permitted to lie carnally with the masbiyya until her womb is known to be empty.
- So if she is pregnant, it is when she gives birth.
- And if she is not pregnant, it is by her having a period.
So if she is not of those who have a period there is no stipulation on it, and there has been disagreement on her and on the virgin, and on the girl the emptiness of whose womb is known in that she has a period with the seller, then he sells her following the period and he did not lie carnally with her, and he did not bring her out from his possession, or she is with a woman and she is protected, so she moves from her to a man. So al-Shafi'i and Abu Hanifa and Ahmad have necessitated assuring the emptiness of her womb in all that, relying on the general sense of the hadiths, and in consideration of the 'idda in that it must occur with the knowledge of the emptiness of the womb. They also rely on the traces of the companions, as Abd al-Razzaq mentioned: Ibn Jarij told us: he said: Ata' said: three businessmen exchanged a girl, so she gave birth, so Omar bin al-Khattab (may God be pleased with him) summoned the lineage experts, so they appended her child to one of them. Then Omar (may God be pleased with him) said: 'The one who has purchased a girl who has started menstruating, let him wait for her until she has a period, so if she has not had a period, let him wait for her for 45 nights.'
They said: And God has mandated the 'idda for the one who has stopped menstruating, and the one who has not yet reached the age of menstruation, and He made it three months. And ensuring the emptiness of the womb is the 'idda of the slave-woman, so it is obligatory for the woman who has stopped menstruating and the one who has not reached the age of menstruation. And others have said: the meaning of ensuring the emptiness of the womb is knowledge of the emptiness of the womb, so when the owner becomes certain of the emptiness of the womb of the slave-woman, he may lie carnally with her and there is no procedure of ensuring the emptiness of the womb obligatory upon him.
This is so as narrated by Abd al-Razzaq, on the authority of Mu'ammar, on the authority of Ayyub, on the authority of Nafi', on the authority of Ibn Omar (may God be pleased with him): he said: if the slave-woman is a virgin, he does not need to ensure the emptiness of her womb if he wills. And al-Bukhari mentioned it in his Sahih collection on his authority.
And Hamad bin Salima mentioned: Ali bin Zaid told us on the authority of Ayyub bin Abdullah al-Lakhmi on the authority of Ibn Omar who said: There fell to my lot a girl on the day of Jalula', as though her neck was a pitcher of silver. Ibn Omar said: so I could not help myself from starting to kiss her and the people were looking on.
And the position of Malik goes back to this, and here is its basis and its derivatives: Abdullah al-Mazari said and he put together a basis for the chapter on ensuring the emptiness of the womb so we mention it here by its expression.
And the summation pronouncement on that matter: that every slave-woman who it is certain is not pregnant, there is no process of ensuring the emptiness of the womb, and all who are likely thought to be pregnant or it is suspected they are pregnant, or there is uncertainty regarding it, then ensuring the emptiness of the womb is necessary for them, and all who are thought likely to be empty in their womb, but with the likelihood of thought it is possible it will occur, then the position is upon two pronouncements in establishment or relinquishing of the process of ensuring the emptiness of the womb.
Then he brought out upon that various derivatives among them...'- and he mentioned many of them then he said:
'And these derivatives, all of them from his position, take you far away from its methodology regarding the process of ensuring the emptiness of the womb, and that indeed it is rather obligatory when there is no knowledge or thought of the emptiness of the womb, but if it is known or thought, then there is no process of ensuring its emptiness. And Abu al-Abbas ibn Sarij and Abu al-Abbas ibn Taymiyya said: that it is not obligatory to ensure the emptiness of the womb of the virgin, as has been correctly established on the authority of Ibn Omar (may God be pleased with them both), and by their pronouncement we speak, and there is not from the Prophet (SAWS) a general stipulation on the obligation of ensuring the emptiness of the womb of all for who gain new ownership of her in whatever state, but rather he forbade lying carnally with the sabaya until their pregnant ones give birth, and their non-pregnant ones have a period.
So if it is said: So its general sense requires prohibition on lying carnally with their virgins before ensuring the emptiness of the womb, just as it is not allowed to lie carnally with the widow [/divorcee]!
It is then said: yes, and its purpose is that it is a general stipulation or application from which the intention has become apparent, but it is made particular or restricted in the absence of something necessitating the process of ensuring the emptiness of the womb, and it is made particular also in the understanding of SAWS' words in the hadith of Ruwayfa': 'Whoso believes in God and the Last Day should not lie carnally with a widow [/divorcee] from the sabaya until she has a period.'
And also it is made particular in the position of al-Sahabi, and no contradiction of it is known.
And in the Sahih collection of al-Bukhari: from a hadith of Buraida: the Messenger of God (SAWS) sent Ali (may God be pleased with him) to Khalid who was in Yemen in order to take the fifth part of the spoils, so Ali chose from it a sabiyya, so he got up in the morning and washed, so I said to Khalid: do you not look at this? And in a narration: so Khalid said to Buraida: do you not see what this man has done? Buraida said: and I hated Ali (may God be pleased with him), so when we went to the Prophet (SAWS), I mentioned that to him, so he said: 'Oh Buraida, do you hate Ali?' I said: Yes. He said: 'Do not hate him, for he has in the fifth part more than that.'
So this girl, either she is a virgin so Ali did not consider it necessary to ensure the emptiness of her womb, or she is at the end of her period, so he sufficed with the period before his taking possession of her.
And in any case, there must be the certainty of the emptiness of her womb such that he had no need for the procedure of ensuring the emptiness of the womb.
So if you give due consideration to the words of the Prophet (SAWS), you find his words: 'One should not lie carnally with a pregnant woman until she gives birth, nor with a non-pregnant one until she has a period.' It then becomes apparent to you from it that the meaning is of the non-pregnant one who may be pregnant, and that she should not be, so one refrains from lying carnally with her out of concern she is pregnant, because one has no knowledge of what her womb has contained. And he said this regarding the musabiyyas because the one taking them captive does not know of their state.
Therefore, all who possess a slave-woman and do not know her state before possession as to whether her womb is carrying a pregnancy or not: he does not lie carnally with her until he ensures the emptiness of her womb with a period: this is a reasonable matter, and it is not a mere ritual act of religious devotion with no meaning for it.
For there is no meaning to ensuring the emptiness of the womb of the virgin and the young girl the likes of whom do not get pregnant, and the girl whom one has bought from one's wife while she is in one's home and does not go out at all, and the like from those whose wombs are known to be empty...'
3. Does the slave-woman have a share incumbent upon her master: that is, in the bedroom?
Imam Ibn Qudama (may God have mercy on him) said: 'There is no share incumbent upon the man in the possession of his right hand, so whoso has women and slave-women, he can enter upon the slave women as he wishes, and enjoy them if he wishes like the women, and if he wishes less, and if he wishes more, and if he wishes he may be equal between the slave-women, and if he wishes he may give preference, and if he wishes he may enjoy some of them over others. The evidence for this is the Almighty's words: 'So if you fear not being fair, then be content with one or what your right hands have possessed'- (al-Nisa' 3). And the Prophet (SAWS) had Maria the Copt, and Rayhana, but he did not give a share to them and because the slave-woman does not have a right for herself in enjoyment, and therefore the choice is not established for her in the event the master is castrated or impotent, so no period of ila' [the period of a man's vow to refrain from lying carnally with his wife, after which the wife can demand a divorce] is contracted for her, but if she needs nikah [marriage/carnal conjugal rights], he must render 'ifaf [chastitiy/fulfilment of carnal needs] to her, whether in lying carnally with her, marrying her off or selling her'- (al-Mughanni 10/248).
4. The private parts of the slave-woman:
The private parts of the slave woman are divided into two parts:
First part: her private parts with regards to the foreigners' looking at her: for that was investigated by the Sheikh of Islam Ibn Taymiyya (may God have mercy on him) in which he relied on what the state of affairs was upon in the time of the Prophet (SAWS) and his noble companions (may God be pleased with them). And he (may God have mercy on him) summarised that her private parts are all besides her sides, and the private parts are the 'head, neck, hands and feet.' And they have been called as such because they appear- i.e. become prominent- in general and it is the meaning of the pronouncement of the jurists: what appears in general. It is to be noted that the verse of the hijab and the command to lower the jilbab did not discuss the slave women in the way it discussed the free people for they have remained on the principle. And the jilbab: it is the covering that covers the head and body.
And the Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'And the Sunna has stipulated the distinction between the free woman and the slave woman in the issue of private parts, and the origin in that is that God the Exalted said: 'Oh Prophet, tell your wives and daughters and the women of the believers to lower over themselves from their jilbabs: that ensures that they should be known and not be harmed'- (al-Ahzab 59). In this verse God the Exalted has stipulated the command to lower the jilbabs for the wives of the Prophet (SAWS) and his daughters and the women of the believers, and He did not mention his slave-women or the slave-women of the believers and they are not those who come under the women of the believers as per the evidence that the Almighty's words are: 'Oh women of the Prophet.' And His words: 'To those who turn back on their women.' And His words: the Almighty has said: 'Those of you who perform zihar to their women.' Indeed by it He meant the wives in particular and if they do not come under the command for covering, they remain on the principle of permissibility especially and the specification of those mentioned in the ruling indicates its lack of validity for those besides them.
And likewise the Almighty's words: 'And let them not share their adornment except to their husbands.' The slave-woman has not come under it because He did not make her master the exception and because He has said:
'Or what your right hands have possessed': indeed this is for the free woman, and this was the custom of the Muslims in the time of the Messenger of God (SAWS) with his knowledge of that, for Anas bin Malek (may God Almighty be pleased with him) said: 'When the Prophet (SAWS) came to know Safiyya, the Muslims said: is she one of the mothers of the believers or what his right hand has possessed? So they said: if he puts in place the hijab for her, she is one of the mothers of the believers, and if he does not put in place the hijab for her, she is of what his right hand has possessed. So when he departed, he prepared for her a place behind him and extended the hijab'- agreed upon. So it was known by this that what their right hands have possessed, they did not put in place a hijab for them like the covering of the free women and that the verse of the hijab is particular to the free women and not the slave-women. And Abu Hafs has narrated in his isnad on the authority of Anas bin Malek that Omar bin al-Khattab saw a veil on a slave-woman so he hit her with his whip and said: 'Do not resemble the free women.'
And on the authority of Abu Qulaba that Omar bin al-Khattab (may God be pleased with him) did not allow a slave-woman to veil herself in his Caliphate and he said: 'The veils are for the free women.'
And the principle is that the private parts of the slave-woman are like the private parts of the free woman just as the private parts of the slave are like the private parts of the free man, but as she has been deemed for professional work and service and her taboo is diminished from the taboo of the free woman, she is allowed to show what she needs to show, to cut her resemblance to the free woman and to distinguish the free woman over her, and that arises by revealing her sides from her head and four sides [hands and feet]. As for the back and chest, they remain on the principle'- (Sharh al-Umda 2/244).
As for if there is fear of temptation arising through her, she is to be ordered to wear hijab, as the Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'The slave-women in the time of the companions proceeded on the roads and their heads were uncovered and they would serve the men with soundness of hearts. But if the men wanted to let the fine Turkish slave-women walk among the people in the likes of this land and times as those slave-women used to walk, that would be from the door of corruption'- (al-Fatawa al-Kubra 2/103).
And Imam Ibn al-Qayyim (may God have mercy on him) said in 'Ilam al-Muwaqq'in: 'Section: the distinction between looking at the free woman and the slave-woman. And as for prohibiting looking at the old, free, distorted ugly woman and its being permitted for the comely beautiful slave-woman, this is a falsehood against the Legislator. For where did God prohibit this and permit this? And God the Exalted rather said: 'Tell the believers to avert their gazes.' And God and His Messenger did not apply for the eyes looking at the comely beautiful slave-women. And if there is fear of temptation in looking at the slave-woman, it is forbidden without doubt, and indeed the doubt has arisen that the Legislator has legislated for the free women that they should veil their faces from the foreigners, and as for the slave-women, He did not make that obligatory for them, but this is for the slave-women of service and labour. As for the slave-women of concubine relationships who are normally protected and veiled, where did God and His Messenger permit them to uncover their faces in the markets and roads and gatherings of the people and permit the men to enjoy looking at them? This is pure error against the Shari'a, and this error has confirmed that for some of the jurists, it has been heard that their pronouncement is that the free woman is entirely private parts except her face and palms and the private parts of the slave-woman are what does not normally appear like the belly, back and leg, so it has been thought that what appears normally, its ruling is the ruling of the face of the man, but this is rather in prayer and not in looking, for indeed the private parts are two types: private parts in looking and private parts in prayer. So the free woman may pray with her face and palms uncovered and she does not have the right to go out in the markets and gatherings of the people likewise, and God knows best.'
Second type: her private parts in prayer: as for her private parts in prayer they are like her private parts outside it, and it is what is besides her sides. The Sheikh of Islam Ibn Taymiyya (may God have mercy on him) said: 'And al-Athram narrated in his isnad on the authority of Ali (may God be pleased with him) he said: the slave-woman can prayer as she goes out and it as Ali (may God be pleased with him) said, for indeed the likes of this cannot be hidden to him from the Sunna of the Messenger of God (SAWS) and it is apparent for indeed the slave-woman, if she goes out with her head uncovered, then that her prayer is likewise sound is all the more applicable and valid, for what the woman veils from the people is more valid than what she veils in prayer.
This is also because if veiling is not obligatory on her and the custom of their slave-women is not that, then it is well-known that they at the time of prayer do not place a veil on them and do not impose a change of form for them, and this is of that in which we do not know a disagreement'- (Sharh al-Umda 2/244).
Conclusion
There is no doubt that this aspect of 'Ilm is wide, but its absence from the reality of the Muslims- with the passing of time- has made most of it lost from the minds of their jurists, not to mention the general mass of Muslims. So it has been left parked in the books. Therefore it cannot be comprised in one message, and it is not wise for us to bring it all out in one time. Imam al-Bukhari (may God have mercy on him) said: 'The chapter of the one who specifies in 'Ilm one people over another, out of hatred that they should not understand, and Ali said: speak to the people in what they know. Do you wish that God and His Messenger should be denied?'
Rather we have been content to bring out the most important of its rulings, and the most important of its issues, but we have placed on our shoulder that we should bring out its particulars and obscurities little by little- by the permission of God Almighty.
And the last of our calls is praise be to God the Lord of the Worlds, and God's blessings and peace be upon the most noble of the prophets and those sent, and on all his family and companions.
Office of Research and Studies
Index
Introduction (p. 3)
Defining sabi as a linguistic and technical term (p. 4)
Applying sabi to enslavement (p. 5)
The legitimacy of sabi (p. 6)
The command to treat the sabaya and the possession of the right hand well (p. 9)
Does sabi apply to women of the People of the Book only or to all the idolatrous women? (p. 12)
Is it permitted to lie carnally with the sabaya of the People of the Book and others besides them of the idolatrous women by possession of the right hand before they convert to Islam? (p. 15)
Ruling on sabi of the apostate woman (p. 20)
Some of the rulings connected with the sabiyya (p. 22)
Is the marriage contract of the sabiyya with her husband dissolved merely by her sabi? (p. 22)
Making sure the womb of the sabiyya is empty (p. 23)
Does the slave-woman have a share incumbent upon her master: that is, in the bedroom? (p. 30)
The private parts of the slave-woman (p. 31)
Conclusion (p. 35)
Done, thanks be to God.
al-Himma Library
Islamic State
A book guides and a sword gives victory
Second Printing
Shawwal
1436 AH
al-Himma Library/Second Printing
Shawwal 1436 AH