Muslim Life Through Fatwas Final Paper

Tricia Pethic 6/16/13

Emptying the Right Hand: Arguing Slavery in Contemporary Fata>wa> ...assessment of the Muslim Self is generally pursued in contradistinction to the Western Other. The Self is thus hardly assessed in its own right....Islam as a faith is employed as a shield for the actions of past and present generations of Muslims....by constantly employing Islam as a shield for what is sometimes indefensible human behaviour, Muslim devotion puts the faith up as an unintended object of attack. The point is that while it is in nobody's interest to pretend that the worst was typical of the total, it is even less so to pretend that things were ideal when they were far from so." -John Alembillah Azumah, The Legacy of Arab-Islam in Africa, p. 175 and 177 Slavery is mitigated and regulated through several verses in the Qur'an, however nowhere is it prohibited in the sacred scriptures. This would cause a problem in the nineteenth century when, under colonial pressure, Muslim countries abolished slavery. Legally-sanctioned slavery lingered in many Muslim countries until the twentieth century. A unique case was Tunisia, the first Muslim country to abolish slavery in 1846, where prior to abolition, black slaves who considered themselves mistreated by their Tunisian owners, tried to flee to the safety of the foreign consulates. Indeed the
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movement to end slavery there was not found in the debating rooms of religious movements as was the case in Great Britain, but behind the walls of Le Bardo palaceat the Beys court. According to van der Haven. it was also not so much the result of
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colonial pressure, but the Beys openness to foreign ideas and possibly his own mothers origin as a Christian slave. Historically, fatwas had addressed the technicalities of how to own slaves, not whether to have them in the first place. Traditional Islamic legal thinking would not prohibit something that had not been expressly prohibited in the scripture, or if it did, it would have to be prohibited through a strong analogy to something similar. In

Elisabeth Cornelia van der Haven, The Bey, the mufti and the scattered pearls: Sharia and political leadership in Tunisias Age of Reform 1800- 1864, (Chapter 2, Ph.D. Diss., Leiden University, 2006), 51. 2 Ibid., 45.

the case of slavery, there was little in the way of analogy that would allow one to prohibit it. Arguments could be made that slavery as it evolved was not the idyllic, benevolent slavery of the early community, and could therefore be called makru>h{, or detested, but detested was not strong enough to forbid. This would be particularly problematic where the shari@ah's scope would be curtailed by the imposition of Western statute law, which demanded a decisive position where previously renderings of justice were not uniform across the polity, being, as they were, in the highly discretionary hands of the qa@di. Although legally abolished in Muslim lands today, questions of slavery in various forms continue to appear. The social stigma attached to slavery seems to be more influenced by a gradual adoption of a concept of human rights, rather than anything outlined in sacred scriptures or jurisprudence. I am interested in how well religious arguments against slavery have been made.

Free at Last! Or Maybe Not? Modern internet fatwas present a unique problem in that many of them are completely anonymous, and the person who gave them cannot be held accountable for their answer. Nevertheless they are a great source for finding where the issue of slavery has reappeared. The following question was posed to islamweb.com on July 7, 2002 and is answered anonymously. The polemical nature of this topic is revealed in the apologetic tone of both the questioner and the mufti@. The questioner first states that he is in agreement with slavery as something just, answering a silent critic, it seems. As for the mufti@, even to a questioner who not only reveals no misgivings about slavery, but also entertains inaccurate and whitewashed understandings of it, he gives an unsolicited defense of slavery: 2

Question: ...I completely agree and accept the position, and [sic] that slavery in Islam brings about a higher opportunity of justice, kindness and fairness to the slave (s). I was made to understand that under the Shari'a, (free) non-Muslims were able to sign a contract in order to give up their rights as a "free" person in order to become a slave (without Jihad). This was done so that they would be under the rights and protection of the Sharia, and so that they would be provided for (in terms of food, clothing, housing, etc.) by their new owner. (This is not to be a "servant" - it is to be a slave, with all of the implications of a slave who was taken in Jihad.) Is/was that true? What are the implications and possibilities of doing that today? Answer: Slavery was practised all over the world when Islam came. In fact, it was an economic and social system among all the countries and the people. So, Islam proceeded from the very beginning to remove the origins of slavery and to limit its sources.
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After expounding the ways in which Isla@m limited or mitigated slavery, he says, ...Islam is the freer of slaves and the equitable with human beings. We are very proud of this. So, if the world now gets together and forbids slavery, Islam will welcome such an initiative as it fits into its aims and objectives. It is lawful for the Muslim leader to sign a convention forbidding slavery. But this does not mean that slavery was abrogated definitely and has become legally inexistent. If the world returns back to enslaving prisoners of war, Muslims will treat their enemies equally. The mufti goes on to develop a very novel argument about why Islam allowed slavery. Interestingly, it hinges on the actions of others in the world. If they allowed it, why should Islam forbid it? Similarly, if they disallow it, then Isla@m will follow suit. This argument effectively gives the moral impetus to non-Muslims to nudge the issue of slavery ahead, and portrays Muslims as those who will adopt a wait-and-see approach in which they will aspire to a higher norm only when others do so. How Isla@mic is this method of reasoning? What is interesting is that it is not the ijma@ of the scholars that is invoked, but rather the ijma@ of the global community! This argument is not based on any juristic methodology but rather, seems to be influenced by the concept of international law. Also noteworthy is that if indeed
3 Slavery in Islam. July 7, 2002. Accessed June 18, 2013. <http://www.islamweb.net/emainpage/index.php?page=showfatwa&Option=FatwaId&Id=84431>

forbidding slavery fits into [Islam's] aims and objectives, then why does he not advocate that Muslims lead the charge in opposing it? Another question on islamweb.com reads: I am doing research on slavery in Islam. Is there slavery in Islam? What is the Fatwa for owning a slave nowadays? Answer: ...As we know there is no slavery in these days. We advise you to refer to the books of Fiqh on this subject.... The mufti> does not give references to assist in the search, nor does he say that the elaboration of slavery's abolition is most likely to be found in the colonial-influenced statute law, rather than traditional books of jurisprudence. The mufti@ then becomes very polemical, erroneously suggesting that modern slavery is a problem only for Europe: For your knowledge, till this time enslavement in its modern form exists, don't you hear about kidnapping nets?! They kidnap children and sell them, especially from eastern Asia, the Balkans and other hot points of the world. They misuse them in many bad fields such as prostitution, smuggling drugs, Magic, taking their body parts etc. You will find all these abuses in Europe, not in Muslim countries. The history of slave trade in Europe by piracy and kidnapping is well known. The Afro Americans are not but a sign of white trade!! (emphasis added)
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The mufti@ does not mention the trans-Saharan slave trade, which was controlled by Muslims.

Concubinage: A Thing of the Past? Juxtaposed with such passionate (if defensive) ways in which internet muftis have approached the question, is the dispassionate way in which the subject of slave women is treated by the Saudi-based scholar S{a@leh al-Munajjid in answering a questioner who clearly seeks to be comforted in addition to being given a legal ruling:
4 Slavery in Islam- Fatwa 82182. January 28, 2002. Accessed June 18, 2013. <http://www.islamweb.net/emainpage/index.php?page=showfatwa&Option=FatwaId&Id=82182>

Could you please clarify for me something that has been troubling me for a while. This concerns the right of a man to have sexual relations with slave girls. Is this so? If it is then is the man allowed to have relations with her as well his wife/wives. Also, is it true that a man can have sexual relations with any number of slave girls and with their own wife/wives also? I have read that Hazrat Ali had 17 slave girls and Hazrat Umar also had many. Surely if a man were allowed this freedom then this could lead to neglecting the wife's needs. Could you also tell clarify wether [sic] the wife has got any say in this matter.
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In response, al-Munajjid extensively cites Qura>nic verses, the practice of the Prophet and his companions, as well al-T{abari and Ibn Kathi>r to show that The scholars are unanimously agreed that it is permissible. Casting aside the questioner's concern that a wife may be neglected, as well as the relevance of such a practice today, he ends with the terse pronouncement, The wife has no right to object to her husband owning female slaves or to his having intercourse with them. And Allaah knows best. One wonders if al-Munajjid, by omitting any discussion of the relevance of concubinage today, is not implying that in fact he sees some form of modern concubinage in his native Saudi Arabia. Indeed, questions have been posed to mufti>s in that region asking about the permissibility of sleeping with a foreign maid, as if she were analogous to a concubine. The fact that al-Munajjid's website is available in twelve languages means that such responses are available to a global audience of Muslims, irrespective of their local conditions or laws. It is also concerning given the lack of pastoral sensibility displayed here.

Youtube Fatwas: Modern Wars, Modern Concubines? A fatwa by a little known Salafi Jordanian scholar Ya@sir al-Ajlouni has

5 Ruling on having intercourse with a slave woman when one has a wife. Accessed June 18, 2013. <http://islamqa.info/en/ref/10382>

recently surfaced. It seeks to reintroduce sexual slavery in the context of the current
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upheaval in Syria. As if this were not concerning on its own, his elaboration of who would come under this legal verdict, as he calls it, seems to include non-Sunni Muslim women. If sexual enslavement was based upon infidelity, then the suggestion of enslaving non-Sunni Muslim women would additionally implicate a charge of takfi@r. Lest this reintroduction of sexual slavery seem like a purely male prerogative, at least one female voice has buttressed this patriarchy. Kuwaiti political activist Salwa al Mut}}airy can also be seen on Youtube, expressing her belief that reintroduction of sex slaves to Kuwait would protect her fellow countrymen from the evils of fornication.
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Mut}airy is not a mufti, however to support her position she claims to have consulted muftis in Saudi Arabia and in her native Kuwait, who appeared to have approved of the practice. Mut}airy of course targets non-Muslim female captives only, as when she mentions the wars in Chechnya, presumably referencing the possibility of Russian female captives who can then be traded to Kuwait. While these individuals have been met with an incredulous uproar from Muslims in the region, it cannot be ruled out that there are those who similarly advocate such a simplistic back to the sources approach. The fact that these discussions crop up in Youtube videos and online fatwas alike seems to suggest that the issue of slavery is not completely put to rest, and that in fact, it is justified through appeal to religious texts and

6Syria UN Rep: Syrian Women Raped by Terrorists; Jordanian Cleric's Fatwa for FSA to Enslave
Girls. Uploaded Apr 18, 2013. Accessed June 18, 2013. <https://www.youtube.com/watch?v=E0NGkNC1kU8>

7Kuwaiti Political Activist Calls for Law Permitting Purchase of POWs to Turn Them into Slave
Girls. Uploaded Jun 15, 2011. Accessed June 18, 2013. <http://www.youtube.com/watch?v=1RyIM2OoNC0>

lines of reasoning. Mentioned earlier was al-Munajjid's uncritical engagement with the question of concubinage, which seemed to suggest that he saw its validity today. This situation speaks to the conflicts of interest scholars face in an environment where slavery, or some form of it, is the norm or even a scholar's source of wealth. Such was the case for the scholar of Timbuktu, Ah{mad Ba>ba (d. 1627), who wrote in a time when slavery was the even moreso the norm. When posed with the question of slavery, Ba>ba, himself a black Muslim scholar, denies any racial component to slavery but affirms slavery in relation to non-Muslims: You know that the cause (sabab) of slavery is unbelief (al-kufr) and that black infidels (kifar al-sudan) are equal in this to other infidels, be they Christians, Jews, Persians, or Berbers.
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However the specific issue posed to him was how to ascertain the religion of slaves in a time when indiscriminate captures were rampant. In this matter he departs from the fatwa of a previous Ma>liki jurist al-Balbali (d. after 1533) who, in a time of similar upheaval in Andalu>s, placed the burden of proof on the owner to prove that he did not enslave a Muslim. Ah}mad Ba>ba, by contrast, places the burden of proof on the slave to prove where they originated. Since tribes often converted among with their chieftain, ones location and tribe was often a shorthand indicator of religious affiliation. To be sure, placing the burden of proof on the owner would have hampered the slave trade considerably, and many religious scholars were themselves invested in the practice. Novo thus speculates whether the question posed to Ba>ba was not an instance of pre-modern fatwa-shopping since the fatwa of al-Balbali was indeed referred to in the question, and therefore it was known. While Ba>ba urges wara', or 8 Maria Garcia Novo, Islamic Law and Slavery in Premodern West Africa, Entremons: UPF Journal of
World History (November 2011), 10.

scrupulousness in avoiding doubtful acquisitions, he at the same time places a near impossible burden of proof on the slave. Novo also expresses shock that Ba>ba's student al-Isi nonchalantly asks a question about ascertaining the race of a slave mother for purchase. Standard Ma>liki law is supposed to uphold the impossibility of the sale of ummahat al-walad (slaves who birth the children of masters), however here Ba>ba answers simply, Buy them whenever you are sure (of their origin), and refrain from it when you have doubts. Again, much is left to the personal t}aqwa, or piety, of the slave
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owner. Ah}mad Ba>bas basis for enslavement was on the matter of religion, not race. As a Black man himself, he was careful to note this. However, what is the applicability of such a practice in our times? In the contemporary Muslim world, Muslims are not politically organized on a religious basis, but rather as separate nations that even at times make war on each other. At least in theory, the basis of solidarity in the modern nation-state is nationality, not religion or tribal affiliation. Even the traditional Mauritanian scholar Abdallah Bin Bayyah, in a private audience with some Western students, praised this aspect of American political life in which Obama could run and win against McCain, a man who had much deeper roots in the United States. This was made
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possible by their both having citizenship. Because of this new global paradigm, Muslim scholars have questioned the traditional Muslim division of the world into da>r al-harb and da>r al-Isla>m. They argue that there is nothing eternal about this worldview, and that this geopolitical division was descriptive and not necessarily proscriptive, on the part of traditional scholars who articulated it. In the words of Muhammad Abu Zuhrah, writing in 1964,

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Ibid., 13. Author among the audience members during Rihla 2008 program.

We object to including this division in the Muslim legal theory as one of its principles. As a matter of fact, this division under the Abbasids corresponded to the factual relations between the Islamic state and non-Islamic state. Classical writers only intended to give a legal justification to that situation.
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How is this relevant to the matter of slavery?

A New Way Forward? My Own Fatwa Reassessing da>r al-harb and da>r al-Isla>m may have implications for postulating a stronger juridical proof in favor of abolishing slavery. In the sample contained above (while by no means comprehensive), we have seen a rather polemical explanation for Isla>ms involvement in slavery and certainly not a vigorous argument against the practice, using traditional juridical tools and concepts. Certainly an ethical argument for abolishing slavery would be more satisfying, but in the fatwa-frenzied environment of Isla>mic practice today, a legal argument is better than a polemical one, or none at all. I have hinted at the possibility that because abolition of slavery was initiated by the West and adopted rather half-heartedly in Muslim lands, this has stunted the development of a stronger, more intellectually faithful articulation of the prohibition of slavery. Thus I propose my own fatwa. If Muslims historically enslaved others on the basis of religion, in the context of conquest, and with the (theoretical) justification that it brought new members to the faith, then one can easily see that slavery is undermined by the decline of the geopolitical theory that buttressed it. In an age of national boundaries and international watchmen such as the United Nations, Muslims no longer spread the religion through political conquest. This is not effective, as contemporary scholars indicate by proposing that non-Muslim lands be seen as da>r al-dawa, not da>r al11 Louay M. Safi, Peace and the Limits of War: Transcending Classical Conception of Jihad, (International Institute of Islamic Thought, 2001), 28.

harb. It is important for Muslim leaders, be they chaplains or imams, to have a ready answer to questions from Muslims and non-Muslims, about the appropriateness of slavery today. It is also important that this answer not appear to be from the person's own opinion, and that a Muslim articulation of the Self not confine itself to being in contradistinction to the West. Mah}moud Ayoub writes, Another basis for dialogue, particularly where dialogue involves comparative explanations, is to compare ideals with ideals and realities with realities. I should not compare the best of my religion with the Inquisition, for instance, in Medieval Christendom. But I should compare the ideals of love in Christianity with the ideals of love and mercy in Islam, and the practices of coercion and persecution in Christianity with its counterpart in Islam so that we are comparing ideals with ideals and realities with realities.
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When Muslims compare the ideal of Muslim slavery to the realities of trans-Atlantic Western slavery, they not only violate this sound principle of dialogue, they sound defensive and factually inaccurate. When they ascend to the clouds and begin to speak about what Isla>m actually teaches, they fail to address what earthlings here on the ground actually experience from those who profess Isla>m. Acknowledging that Muslim slavery was not always idyllic, that not every slave became a prince, that not every slave became a Muslim scholar, (indeed, many a slave was owned by one); this is what we must do.

Bibliography

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Mahmoud M. Ayoub, Basis for Interfaith Dialogue: Prospects and Challenges, Occasional Papers Series, Paper No. . Muis Academy, Singapore, (2011), 5.

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Ayoub, Mahmoud M. Basis for Interfaith Dialogue: Prospects and Challenges. Occasional Papers Series, Paper No. 9. Muis Academy, Singapore, 2011. Azumah, John Alembillah. The Legacy of Arab-Islam in Africa: A Quest for Interreligious Dialogue. Oneworld: Oxford, 2001. Haven, Elisabeth Cornelia van der. The Bey, the mufti and the scattered pearls: Shari>a and political leadership in Tunisias Age of Reform 1800- 1864. Doctoral thesis. Leiden University, 2006. Novo, Maria Garcia. Islamic law and Slavery in Premodern West Africa. Entremons: UPF Journal of World History, November 2011. Safi, Louay M. Peace and the Limits of War: Transcending Classical Conception of Jihad. International Institute of Islamic Thought, 2001. Kuwaiti Political Activist Calls for Law Permitting Purchase of POWs to Turn Them into Slave Girls. Uploaded Jun 15, 2011. Accessed June 18, 2013. <http://www.youtube.com/watch?v=1RyIM2OoNC0> Ruling on having intercourse with a slave woman when one has a wife. Accessed June 18, 2013. <http://islamqa.info/en/ref/10382> Slavery in Islam. Fatwa 84431. July 7, 2002. Accessed June 18, 2013. <http://www.islamweb.net/emainpage/index.php? page=showfatwa&Option=FatwaId&Id=84431> Slavery in Islam- Fatwa 82182. January 28, 2002. Accessed June 18, 2013. <http://www.islamweb.net/emainpage/index.php? page=showfatwa&Option=FatwaId&Id=82182> Syria UN Rep: Syrian Women Raped by Terrorists; Jordanian Cleric's Fatwa for FSA to Enslave Girls. Uploaded Apr 18, 2013. Accessed June 18, 2013. <https://www.youtube.com/watch?v=E0NGkNC1kU8>

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