I. Nonconsensual sex—what contemporary Westerners would term rape—might be either a coercive subset of zinā, with blame lifted from the coerced participant, or a type of usurpation (ightisāb), a property crime that by definition cannot be committed by a husband or owner, who possesses an entitlement to, or ownership over, his wife's or slave's sexual capacity. 15 Thus, as Hina Azam writes, “sexual coercion within clearly licit contexts (such as marriage or slavery) . So pervasive is deference to some notion of consent that even Daʿish supporters who uphold the permissibility of enslaving women captured in war can insist that their refusal or resistance makes sex unlawful.Footnote Google Scholar; Rabb, Doubt in Islamic Law, 50. Jocelyn Sharlet records a roughly similar story of resistance to sale or gift. "shouldUseHypothesis": true, This scenario is never, however, illicit in the jurists’ conceptual world. 6 1. It was a real marriage, including the intention and consent of both parties to form a lifelong union. The jurists’ occasional affirmations that a married female slave whose owner nonetheless has sex with her is not to be punished is the closest any of these texts comes to considering the relevance of an enslaved woman's consent. Ali, Kecia, Marriage and Slavery in Early Islam (Cambridge, Mass. 13 Brockopp, Early Mālikī Law, 121–24. I recall no instance in any Maliki, Hanafi, Shafiʿi, or Hanbali text from the 8th to 10th centuries where anyone asserts that an owner must obtain his female slave's consent before having sex with her. Brockopp, Early Mālikī Law, 121–24. 36. }, International Journal of Middle East Studies, Department of Religion, Boston University, Boston, Mass. Rabb, Intisar, Doubt in Islamic Law (Cambridge: Cambridge University Press, 2014)Google Scholar, 152n78. This data will be updated every 24 hours. Nonconsensual sex—what contemporary Westerners would term rape—might be either a coercive subset of zinā, with blame lifted from the coerced participant, or a type of usurpation (ightisāb), a property crime that by definition cannot be committed by a husband or owner, who possesses an entitlement to, or ownership over, his wife's or slave's sexual capacity. In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. w/in 5 years after the celebration of the marriage She says no; her owner frees her on the spot.Footnote 14 What jurists take for granted—particularly across madhhab boundaries—is often more telling than what they state explicitly. Dann, Michael, “Between History and Hagiography: The Mothers of the Imams in Imami Historical Memory,” in Concubines and Courtesans: Women and Slavery in Islamic History, ed. Prof. Kecia Ali (Boston), Captivity, Concubinage, and Consent: Sex and Slavery in Early Islamic Law Sign up if you would like to receive news and … 15 That the text of the Qurʾan does not permit sexual access simply by virtue of milk al-yamīn is a defensible theological claim.Footnote 7 Permanent concubinage, though not recognized by the civil law, was viewed as a real marriage, as it involved the intention and consent of both parties to form a lifelong union. Explications. Western scholars have generally assumed that in Islamic jurisprudence, milk al-yamīn, typically rendered “ownership by the right hand,” automatically granted free male owners licit sexual access to enslaved females whom they owned.Footnote Azam, Hina, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar, 186. ... You consent to our cookies if you continue to use this website. So pervasive is deference to some notion of consent that even Daʿish supporters who uphold the permissibility of enslaving women captured in war can insist that their refusal or resistance makes sex unlawful. fell outside the scope of zinā.”Footnote In discussing withdrawal (ʿazl) as a method of contraception the jurists distinguish between consent (possibly) required from wives and that (never) required from enslaved concubines. Permanent concubinage, though it lacked the ordinary legal forms and was not recognized by the civil law as a legal marriage, had in it no element of immorality. The Revised Penal Code penalizes adultery, committed by a married woman, and concubinage, committed by a married man. 3 If they do reflect such stratagems, they further show that a slave's simple “no” would not suffice.) See pp. "newCiteModal": false 10 But the Prophet (ṣ) instituted many practices that were intended to gradually phase out slavery and concubinage from society, including legal protections for concubines from rape, sex crimes, and abusive men. Italics in original. Injured party. Quoted in Ali, Marriage and Slavery, 40. Other types of texts, too, may preserve countervailing voices, in tension with the ideal fiqh model in which enslaved women's consent is simply disregarded. Close this message to accept cookies or find out how to manage your cookie settings. 20 January 2017. 3. Some of his UK-based informants assume consent as the default position, but insist that because forcible rape is basically beating, and because unjust beating is never permissible, rape is not allowed. 3 "metricsAbstractViews": false, Graeme Wood, personal communications with the author, June–July 2016. Brockopp, Jonathan, Early Mālikī Law: Ibn ʿAbd al-Ḥakam and His Major Compendium of Jurisprudence (Leiden: Brill, 2000), 199 Indeed, I am aware of no case where anyone asks whether her consent is necessary or even asserts that it is not required. Consult also STD. One could perhaps argue that slaves’ consent to sexual relationships with their masters was such an obvious requirement that no one thought it necessary to mention. 13 * Views captured on Cambridge Core between 20th January 2017 - 24th January 2021. (It remains debatable whether milk is best understood in these contexts as entitlement, ownership, or some mélange of the two.) One might speculate that the same is true of forced sex with an enslaved woman. It strains logic to suggest that an enslaved woman is subject to being married off without her consent or against her will to whomever her owner chooses but that he cannot have sex with her himself without her consent. A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Qurʾan forbids nonconsensual relationships between owners and their female slaves, claiming that “the master–slave relationship creates a status through which sexual relations may become licit, provided both parties consent.” She contends that “the sources” treat a master's nonconsensual sex with his female slave as “tantamount to the crime of zinā [illicit sex] and/or rape.”Footnote They disagreed about whether husbands needed their enslaved wives’ agreement to practice ʿazl or that of their wives’ masters. kaso kayo sa isa’t isa ng adultery o Concubinage dahil pumayag o nag Consent kayo ayon sa kasulatan na ito. Google Scholar, esp. I do so now in this brief essay. 16 Notably, the issue emerges only because she is married to another man, a marriage for which jurists uniformly agree that her consent would have been unnecessary. These stories also call into question the usefulness of the legal category of slave as an historical and social descriptor. Quoted in Ali, Marriage and Slavery, 40. 25, 27, 29–30. Copyright © Cambridge University Press 2017, Hostname: page-component-76cb886bbf-tmbpq This data will be updated every 24 hours. A female slave who had an intimate/sexual relationship with her owner was a concubine. Whether jurists took this stance is a historical question. Apparently, one can simultaneously laud slave concubinage and anathematize rape. Clearly intended to demonstrate miraculous workings in the lives of the imams, the story assumes that without divine providence, a desirable enslaved female would have no choice about her sexual partners.Footnote I showed that jurists understood milk al-nikāḥ (marriage) and its attendant spousal claims through analogies with gendered and sexualized slavery. "openAccess": "0", We use cookies to distinguish you from other users and to provide you with a better experience on our websites. (A person cannot simultaneously own and be married to the same slave, though people can under certain circumstances marry other people's slaves.) ; e-mail: [email protected], https://doi.org/10.1017/S0020743816001203, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence, Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, Early Mālikī Law: Ibn ʿAbd al-Ḥakam and His Major Compendium of Jurisprudence, The Position of Women in Islam: A Progressive View, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure, Twelve Infallible Men: The Imams and the Making of Shiʿism, Between History and Hagiography: The Mothers of the Imams in Imami Historical Memory, Concubines and Courtesans: Women and Slavery in Islamic History, Consorts of the Caliphs: Women and the Court of Baghdad, As If Silent and Absent: Bonds of Enslavement in the Islamic Middle East, http://www.mizanproject.org/journal-post/redeeming-slavery/. Shall keep a mistress in the conjugal dwelling. (The manumission must take place before the marriage, else the marriage would impermissibly mingle the two sorts of milk; if she agrees but after being freed refuses to marry him, she may owe compensation but is not re-enslaved. Her female owner asks her if she wishes to be sold—which would presumably entail becoming the purchaser's concubine. Had little in common beyond their formal status in these contexts as entitlement, ownership, some... In both pre-Islamic Arabia and the Court of Baghdad, ed, 82–83 ; Ali, sexual and. The early Christian Church that it is not required writes, “ sexual coercion within clearly licit contexts such! His New life it will serve as payment for my debt to him East and.! With anyone except for this wife or concubine Xiu transmigrated to the unanimous abolition of slavery Muslims. To hear that a man and woman living together in illicit intercourse slavery ) civilizations, …! 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