Marriage and Slavery in Early Islam Read Online Free PDF Page A

hadith scholars and exegetes, furthers the connection between marriage and slavery by drawing connections and extending verdicts systematically.

    Legal Development
    Shafi ' i’s treatment of a woman taking her male slave as a concubine both crystallizes and constitutes a culmination of the legal discussion of marriage, spousal rights, and lawful sex in the formative period. It demonstrates continuities with the era represented in the Mu s annaf as well as departures from the decision-making process it depicts. Slavery remained an unchallenged fact of social life. Authorities still forcefully rejected the notion that a (free) woman could take a (slave) concubine and took for granted (free) men’s right to do so. Fundamentally, neither ' Umar’s companions nor Shafi ' i could conceive of licit sex without male control, even if they expressed themselves differently and with varying degrees of self-awareness about the regulating endeavor in which they were engaged. Yet between the one and the other, vital shifts in Islamic legal thought occurred. Between the late eighth century, when key for- mative figures lived, and the early tenth century, when the eponymous schools of jurisprudence were established, doctrines became system- atized, methods became more uniform, and a theoretically coherent notion of marriage and licit sexuality, centered on exclusive male do- minion of female sexual capacity, emerged. 36 Some of these elements were already in place at an intuitive rather than systematic level in the Mu s annaf. There, ad hoc decision making prevailed. ' Umar alludes to
    scripture in discussing the woman who takes a male concubine, but does not explicitly cite Qur ' anic verses. No one was professionalized or formally authorized to render legal opinions. The compilation of the Mu s annaf more than a century later retrospectively affirms the prece- dential value of Companion verdicts alongside the legal opinions of early regional authorities (here, mostly Meccan), even as its transmission bears witness to the activity of a new class of specialists who report and record these earlier precedents.
    Early legal texts display remarkable variety in form as well as con- tent, ranging from compendia of reports like ' Abd al-Razzaq’s Mu s annaf to explicitly reasoned treatises and vigorous discussions of legal dis- agreements. Texts like the Mu s annaf served a different purpose from the Umm ’s , and continued to be produced alongside more speculative works of jurisprudence. But even though there was no strict linear progres- sion from one methodological stage to another, the overall trend was toward more formal arguments and scriptural evidence-based justifica- tions for particular doctrines. Qur ' an and prophetic precedent in the form of hadith were the primary sources utilized, though the opinions of earlier authorities, from the generation of the Companions to regional scholars, continued to carry weight. 37 Yet over the course of the forma- tive period, the bounds of viable opinion on a variety of topics narrowed and justifications for specific positions were elaborated. Intergroup po- lemics helped strengthen evidentiary and logical standards. Certain types of arguments gained prominence while others tended to fade. In some instances, new doctrines developed. In other cases, jurists took established doctrines and kitted them out with scriptural proof texts and bolstered them with stronger logical defenses.
    Analogy, qiy a s, plays a central role in formative-period legal thought. Its use in the main texts of Maliki, Hanafi, and Shafi ' i thinkers is evident. Analogy comes to be a major component of the shared Sunni legal method, one of the four sources of law in the framework commonly if erroneously attributed to Shafi ' i. Explicit reference to it in formative-period texts is tentative and sometimes erratic, though, mostly occurring when a doctrine deviates from the results that would be expected by it. 38 It is one of my