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Concubinage and Consent

  • Kecia Ali (a1)
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In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. 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. Apparently, one can simultaneously laud slave concubinage and anathematize rape. 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.” Though I believe in the strongest possible terms that meaningful consent is a prerequisite for ethical sexual relationships, I am at a loss to find this stance mirrored in the premodern Muslim legal tradition, which accepted and regulated slavery, including sex between male masters and their female slaves.

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NOTES

1 Graeme Wood, personal communications with the author, June–July 2016. 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. Wood addresses this topic in The Way of the Strangers: Encounters with the Islamic State (New York: Random House, forthcoming). For additional discussion of Daʿish and slavery, consult Ali, Kecia, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence, revised and expanded edition (London: Oneworld, 2016), 6771 ; and Ali, “Redeeming Slavery: The ‘Islamic State’ and the Quest for Islamic Morality,” Mizan: Journal of Interdisciplinary Approaches to Muslim Societies and Civilizations 1 (2016): accessed 6 October 2016, http://www.mizanproject.org/journal-post/redeeming-slavery/

2 Rabb, Intisar, Doubt in Islamic Law (Cambridge: Cambridge University Press, 2014), 152n78. Italics in original.

3 Noting that “Classical Islamic family law generally recognized marriage and the creation of a master–slave relationship as the two legal instruments rendering permissible sexual relations between people,” Rabb cites two examples of later classical scholars who mention the “objections” of earlier figures to slave concubinage. Doubt in Islamic Law, 50n6. These examples bear further exploration but do not address the question of an enslaved woman's consent among the vast majority who considered milk al-yamīn to create an entitlement to sex. (It remains debatable whether milk is best understood in these contexts as entitlement, ownership, or some mélange of the two.) On enslaved people's consent to sexual relationships including marriage, consult Ali, Kecia, Marriage and Slavery in Early Islam (Cambridge, Mass.: Harvard University Press, 2010), esp. chap. 1. Laiou, Angeliki E., ed., Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Washington, D.C.: Dumbarton Oaks, 1993) presents comparative examples.

4 Access would be licit barring extraordinary conditions such as her marriage to another man; her possession of a contract of emancipation (kitābah), granting her a liminal status; or shared ownership. Ali, Marriage and Slavery, 154–58, 167–68; Brockopp, Jonathan, Early Mālikī Law: Ibn ʿAbd al-Ḥakam and His Major Compendium of Jurisprudence (Leiden: Brill, 2000), 199 ; Rabb, Doubt in Islamic Law, 50.

5 Brockopp, Early Mālikī Law, 121–24. See pp. 128–38 for an overview of Qurʾanic discussions of slavery.

6 Mohammad Ali Syed considers jurists who allowed nonmarital sex with slaves “totally mistaken.” Syed, The Position of Women in Islam: A Progressive View (Albany, N.Y.: State University of New York Press, 2004), 3336 , esp. 36. Asifa Quraishi-Landes expresses “skepticism” about whether scripture permits it. Quraishi-Landes, “A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law,” in Feminism, Law, and Religion, ed. Marie Failinger, Elizabeth Schiltz, and Susan J. Stabile (New York: Routledge, 2014), 178–79. Consult also Spectorsky, Susan, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin, Tex.: University of Texas Press, 1993), esp. 25, 27, 29–30.

7 Quoted in Ali, Marriage and Slavery, 40. Jurists disagreed about compelling an enslaved woman only where her freedom was in abeyance (e.g., she was an umm walad [168]).

8 On withdrawal, consult Ali, Sexual Ethics and Islam, xxxv, 8, 58–62.

9 Ali, Marriage and Slavery, 166–67.

10 Ibid., 82–83; Ali, Sexual Ethics and Islam, 11–12.

11 Azam, Hina, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University Press, 2015), 186.

12 Ibid., 180.

13 Pierce, Matthew, Twelve Infallible Men: The Imams and the Making of Shiʿism (Cambridge, Mass.: Harvard University Press, 2016), 135–36. See also 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. Gordon, Matthew S. and Hain, Kathryn (Oxford: Oxford University Press, forthcoming).

14 al-Saʿi, Ibn, Consorts of the Caliphs: Women and the Court of Baghdad, ed. Toorawa, Shawkat M. (New York: New York University Press, 2015). Jocelyn Sharlet records a roughly similar story of resistance to sale or gift. Sharlet, “Educated Slave Women and Gift Exchange in Abbasid Culture,” in Concubines and Courtesans.

15 One example is the slave who tells the man who bought her that she has a husband. Ali, Marriage and Slavery, 158–59.

16 Toledano, Ehud, As If Silent and Absent: Bonds of Enslavement in the Islamic Middle East (New Haven, Conn.: Yale University Press, 2007).

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International Journal of Middle East Studies
  • ISSN: 0020-7438
  • EISSN: 1471-6380
  • URL: /core/journals/international-journal-of-middle-east-studies
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