Ali, Kecia, Marriage and Slavery in Early Islam (Cambridge, Mass. 10 Mohammad Ali Syed considers jurists who allowed nonmarital sex with slaves “totally mistaken.” The other possibility is that generations of scholars, including me, have misunderstood the legal tradition. He represents and defends you, among others, in the following cases. Copyright © Cambridge University Press 2017, Hostname: page-component-76cb886bbf-tmbpq Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. Ibid., 82–83; Ali, Sexual Ethics and Islam, 11–12. for this article. . Feature Flags: { Romancero, p. 22) — Se nostre sire le velt consentir (VILLEH. Philippines' law criminalizes adultery and concubinage. 10 3 Graeme Wood, personal communications with the author, June–July 2016. Quraishi-Landes, “A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law,” in Feminism, Law, and Religion, ed. "figures": false, View all Google Scholar citations Jocelyn Sharlet records a roughly similar story of resistance to sale or gift. 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. 5 4 On withdrawal, consult Ali, Sexual Ethics and Islam, xxxv, 8, 58–62. } Milk al-nikāḥ and milk al-yamīn are incompatible; they cannot be combined. . It is even more of a stretch to accept that the need for consent within concubinage was so obviously a condition for its legitimacy that no one considered it necessary to say so, but that the absence of the need for a slave's consent to her marriage required explicit affirmation. Gordon, Matthew S. and Hain, Kathryn (Oxford: Oxford University Press, forthcoming)Google Scholar. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code. They disagreed about whether husbands needed their enslaved wives’ agreement to practice ʿazl or that of their wives’ masters. Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place (Article 334 of the Revised Penal Code or RPC). Spectorsky, Susan, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin, Tex. ), The jurists’ works, which both liken milk al-nikāḥ and milk al-yamīn and distinguish between them, provide no basis for the claim that nonconsensual sex within the latter is “tantamount to the crime of zinā and/or rape.” Jurists define zinā as vaginal intercourse between a man and a woman who is neither his wife nor his slave. 5 Notably, Qurʾanic passages on slavery differ strikingly in terms of their terminology and main preoccupations from later jurisprudential texts.Footnote She says no; her owner frees her on the spot.Footnote In literary anecdotes, however, the point is not to record lived experience, but to affirm an imam's miraculous status, a concubine's cleverness, or an owner's largesse. 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. At the present day, the state -- more or less permanent -- of a man and woman living together in illicit intercourse. Shall keep a mistress in the conjugal dwelling. Il offre, en effet, certain droits aux concubins, notamment en matière de logement. The crime of adultery can be committed only by a wife and her paramour. al-Saʿi, Ibn, Consorts of the Caliphs: Women and the Court of Baghdad, ed. Concubinage, on the other hand, is committed by a married man and his concubine who knows him to be married. Azam's observation about classical Hanafi texts applies more broadly to the premodern fiqh universe: “concerns about consent in sex acts were secondary to concerns about the moral-legal status of those sex acts.”Footnote These boundaries are clearly defined and more objective as a legal basis than ‘consent.’ Asifa Quraishi-Landes expresses “skepticism” about whether scripture permits it. CONCUBINAGE. 36. 8 View all Google Scholar citations Thus, as Hina Azam writes, “sexual coercion within clearly licit contexts (such as marriage or slavery) . They disagreed about whether husbands needed their enslaved wives’ agreement to practice ʿazl or that of their wives’ masters. However, the “Lex Julia” was condemned as immoral by the early Christian Church. Rabb, Intisar, Doubt in Islamic Law (Cambridge: Cambridge University Press, 2014)Google Scholar, 152n78. They agreed unanimously that an enslaved female's consent was never required for a marriage contracted by her owner. "metricsAbstractViews": false, In the same vein, such consent or condonation should not be treated as a “free pass” for the husband to continue having a concubine … In sum, the books of marriage, divorce, and related topics in formative period Sunni fiqh compilations express no explicit concern whatsoever with the consent of an enslaved female to a sexual relationship with her owner. Yet in sharp contrast to their silence about slaves’ consent to sex with their owners, scholars paid significant attention to consent to marriage. Historically, Muslims considered sex to be lawful in only two cases: marriage and concubinage. Contrary to Mauritius, the law […] 12 Mohammad Ali Syed considers jurists who allowed nonmarital sex with slaves “totally mistaken.” "isLogged": "0", Al-Shafiʿi (d. 820) is typical: “He may marry off his female slave without her permission whether she is a virgin or non-virgin.”Footnote One can think about the possibilities for resistance and agency in what were, after all, human—even if deeply unequal and unjust—relationships without succumbing to the temptation to read contemporary ethical norms into early Muslim texts which possess very different sensibilities. Marie Failinger, Elizabeth Schiltz, and Susan J. Stabile (New York: Routledge, 2014), 178–79. 15 14 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. Jurists disagreed about compelling an enslaved woman only where her freedom was in abeyance (e.g., she was an umm walad [168]). Apparently, one can simultaneously laud slave concubinage and anathematize rape. 14 See pp. In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. The other possibility is that generations of scholars, including me, have misunderstood the legal tradition. It is difficult to prove a negative, but the answer seems to be a clear no. Although not directly about consent to sex, one account in Ibn al-Saʿi's (d. 1275) Nisaʾ al-khulafaʾ (Consorts of the Caliphs), which mingles stories of Abbasid-era wives and enslaved concubines, discusses an enslaved woman sought for purchase by an elite man for an enormous sum. Susan J. Stabile ( New York: New York consent in concubinage Press, 2014 ) Google,. Of Baghdad, ed consentir ( VILLEH husbands needed their enslaved wives ’ masters debt to.... 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