Free Marriage and Slavery in Early Islam by Kecia Ali Page A

for a female slave, if a male slave married before ob- taining permission, his master could either dissolve the marriage or authorize it after the fact. 42
    Shafi ' i—concerned, as with the minor non-virgin, with making sure every legal claim was respected—diverged on both points. He dis- allowed the master’s after-the-fact ratification of a slave’s marriage. But not only was the master’s permission vital for a valid contract, so was the slave’s explicit consent: the contract was null if either had not con- sented in advance. 43 Gender interacted with enslavement to define a male slave’s agency for Shafi ' i. As a slave, he could not marry without his master’s permission, but as a man, he could not be compelled to marry. A certain irreducible masculinity prevented an adult male slave from losing the right to sexual self-determination for Shafi ' i; he explic- itly contrasts the male slave with a female slave, who was perpetually subject to coercion.
    In contrast to the male slave and the free female, sexual and marital self-determination was never available to an enslaved female. Her mas- ter’s right of possession granted him licit sexual access to her, and if he married her off that right passed to her husband. 44 Occasional passages suggest that certain enslaved women had forceful opinions on the selec- tion of their husbands. Hanafi authorities even countenance after-the- fact ratification of a slave woman’s marriage. 45 The ultimate decision, however, rested with her master: as a matter of law, a female slave had no choice, regardless of whether she was in her majority or had been previously married. In contrast to free women, female slaves’ virginity is seldom discussed in connection with their marriages, and where it does appear, its irrelevance is clear: “He may marry off his female slave with- out her permission whether she is a virgin or a non-virgin.” 46
    The transition from virgin to thayyib, legally irrelevant in matters of marriage for female slaves and all males, was momentous for free females. Thayyib free women past the age of majority had to give their spoken assent to any marriage contracted on their behalf. 47 Sexual ex- perience gave the bride a voice, as al-Shaybani notes: “A virgin’s per- mission is her silence, but a non-virgin’s consent is spoken [ bi lis a nih a ].” 48 The bride’s speech acts not merely as token acquiescence but might po- tentially reflect a take-charge attitude: Ibn al-Qasim states in the Mu- dawwana, in response to Sahnun’s query as to whether silence on the part of a thayyib constitutes assent, “No, rather she must speak and del- egate her wal i to marry her off.” 49
    The paradigmatic case for this type of female consent is that of Khansa ' bint Khidham. Having been previously married, Khansa ' ob- jected to a marriage concluded for her by her father. According to the Muwa tt a © ‘s account, “She went to the Messenger of God, may God’s blessings and peace be upon him, and he rescinded the marriage.” 50 Maliki and Shafi ' i texts cite her case as proof that a man loses the power to compel his daughter’s marriage once she is a thayyib. Hanafi authori- ties stretch the lesson of Khansa ' ‘s case further, concluding that any woman who has reached majority escapes her father’s power of compul- sion. Muhammad al-Shaybani follows Khansa ' ‘s case in the Muwa tt a © Shayb a n i with the declaration that “[neither] the non-virgin nor the virgin if she has reached majority should be married off except with her permission”; this is the case “whether her father or someone else is marrying her off.” 51 Though she need not consent verbally, a mature virgin’s implicit assent through silence is required. If a mature virgin expresses opposition, she cannot be considered to have consented to the marriage. The Kit a b al- H ujja recounts further instances in which a b a ligh virgin was married off “without her consent (bi ghayri