Free Marriage and Slavery in Early Islam by Kecia Ali

First, though, we must make clear the crucial effect—at least theoretically—in the Muslim slave system of allowing slaves to marry, albeit with their masters’ consent. 36 The ethos of sexual morality bind- ing all believers, including slaves, was vital. A contrast to Roman mar- riage helps make the case more clearly. If “the purpose of Roman marriage was the production of legitimate citizen children,” 37 the pur- pose of Muslim marriage was licit sex. Roman marriage was limited to citizens or those who were granted “ ius conubii, the right to contract a valid Roman marriage with Roman citizens.” 38 For the Muslim jurists, procreation was an aim of marriage, to be sure, but neither licit sex nor
    legitimate offspring were limited to marriage. Concubinage—in a form quite different from its Roman practice—made sex lawful and legiti- mized any resultant children.
    Muslim law allowed slaves of both sexes to marry with their owners’ permission, and anecdotal evidence shows that they did. They could val- idly marry either other slaves or free persons, though never their own masters or mistresses. Men could have sexual access to their female slaves only as long as these slaves were unmarried. This attempt to im- pose sexual exclusivity for female slaves was rare in antiquity; in fact, to be a female slave was generally to have no claim to sexual exclusiv- ity. 39 But for the Muslim jurists, slaves’ liaisons fell under divine pur- view: marriage for slaves was a way of ensuring that they did not trans- gress the boundaries of moral conduct set forth by God. Allowing slaves to marry, however, risked jeopardizing their owners’ authority and prerogatives to use their labor and oversee their movements. Owners’ control was reaffirmed through regulating the formation and dissolu- tion of marriages and by insisting on the rights of masters to control slaves’ labor regardless of marital status.
    In keeping with the integration of slavery into a hierarchical framework of kin relations, the supervisory role played by agnatic kin in marriages of free persons (especially females) was played by enslaved people’s owners. Owners’ scope of authority differed, like that of par- ents, depending on the slaves’ characteristics. As with rules governing marriages of free people, regulations for slave marriage varied by gen- der and, in some cases, age. Slavery and femaleness were both legal disabilities. Merged in the person of the female slave, they aggravated one another; the disability could be mitigated by maleness in the case of the former or freedom in the case of the latter.
    For free males, majority determined their scope for legal action in marriage, but majority might or might not make a difference for enslaved males. The nonconsensual marriage of minor male slaves, like minor sons, was universally accepted, though seldom discussed and presum- ably rare. A master would gain little by marrying his male slave off before maturity, whereas marrying off a female slave would give him the right to the dower thereby garnered, as well as ownership of any offspring she bore to her husband. Could an adult male slave be com- pelled to marry? On this point, jurists disagreed. An adult slave’s male- ness, which would have given him full and sole control over his marital
    destiny if he were free, stood in tension with his status as a slave. Malik and his followers allowed an owner to marry off his male slave without the slave’s consent; in this matter, slave men were like female slaves, virgin daughters, and minor sons. 40 Enslavement either feminized or infantilized the male with regard to consent. Formative-period Hanafi texts do not discuss explicitly whether male slaves could be married off without their consent, and later texts are split, though the dominant view favors compulsion. 41 Both Hanafi and Maliki authorities held that though the owner’s permission was required for the valid marriage of a male slave just as