FREEDOM AND SLAVERY IN EARLY ISLAMIC TIME ( 1

Slavery as a socially important institution has been studied for different times and regions in Islam and under legal as well as social aspects. 1 According to the common view, slavery was an institution This article focuses on two topics: the presumption of freedom in the “literary period” (from the 8th century on) and the question of enslavement, sale, bondage or self-dedition of free persons in the “pre-literary period” (7th and 8th centuries). Based on the assumption that the legal practice in Late Antiquity influenced the discussions of the early Muslim jurists I will try to reconstruct the legal discourse of the 1st/7th and 2nd/ 8th centuries and to show that this discourse comprised interesting legal opinions with regard to the sale of children, debt-bondage and the legal position of foundlings. In the legal literature which emerged from the 2nd/8th century the jurists did not, as one would expect, deal intensively with the topic. Thus there is, as will be shown, a certain inconsistency between the lively and controversial discourse in the “pre-literary period” on the topic, which will be reconstructed in this article, and the marginalization of the topic in the legal literature afterwards.


The Presumption of Freedom
Al-aól huwa al-çurriyya: The basic principle is freedom.This principle is quoted whenever the subject of freedom in Islam is dealt with.Lewis states: "It became a fundamental principle of Islamic jurisprudence that the natural condition, and therefore the presumed status, of mankind was freedom". 4ut what does it mean to say that freedom is a "basic principle"?Is it not contradictory to maintain that freedom is the "presumed status" when at the same time and in the same social context the institution of slavery exists?Which dividing line was drawn between freedom and slavery?How was freedom dealt with on the theoretical and on the practical level?Rosenthal points out that, philosophically, the question was insufficiently discussed in medieval Islamic literature.Freedom has been used as an ethical term denoting a "noble" character and, in a Sufic sense, as free from everything except God.In the political context it was discussed but did not achieve the status of a fundamental political concept. 5 Legally, freedom is mainly considered as the opposite of the status of a slave.From the 2 nd /8 th century onwards slavery was considered to be a status passed on only through birth (i.e. a female slave gives birth to a child whose father also is a slave) or effected through captivity, i.e. when a non-Muslim who was protected neither by treaty nor by a safe-conduct document fell into the hands of the Muslims. 6On the other hand, the conversion of a Christian or Jewish slave to Islam did not lead to his or her manumission.
The impression that Lewis' claim, quoted above, might give, i.e. that the principle al-aól huwa al-çurriyya is widely mentioned in the sources, is wrong.Surprisingly, Muslim jurists have not thoroughly analysed this principle on the philosophical and legal level.Hardly does one find a discussion about the status of freedom or a discussion Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353  4 Lewis, Race and Slavery, 6; see also Santillana, D., Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciafiita, Rome, 1938, 1, 13 ff; Rosenthal, F., The Muslim Concept of Freedom prior to the Nineteenth Century, Leiden, 1960, 32 ff; Brunschvig, R., "'Abd" in EI 2 , 1, 24-40; the "principle of freedom" is of course no Islamic invention but existed in the legal discourse of the Antiquity as ius naturale, see Knoch, S., Sklavenfürsorge im Römischen Reich, Hildesheim, 2005, 34-40.
of the cases in which this principle was violated, connected with the question of how the sale of a free person should be punished, what measures should be taken, etc. 7 The problem needs further research but is discussed here only under the special aspect of the law of procedure.The "principle of freedom" comes into conflict with the institution of slavery e.g. in the context of the law of procedure, when people had to prove their status as a slave or a free person, because difference of status would have led to a different legal treatment at court and also to a different kind of punishment.Thus the •anafê jurist Jaóó×s (d.370/981) mentions this principle in his commentary on Khaóó×f's (d.232/847) book of council for judges (adab al-q×Ýê): "Because men are generally free (li-anna an-n×s açr×r fê l-aól) with the exception of four cases: testimony, talio, the çadd (i.e.Qur'×nic) punishments and blood-money". 8he starting point for this remark was the following situation: an accused in a penal process had claimed that the witnesses of the opposing party testifying against him were slaves and not free persons.If this were the case, they would not be allowed to testify against him.The judge ordered the witnesses to prove their legal status.He thereby turned the burden of proof on the witnesses.Thus, the simple assertion of the accused was sufficient to oblige the witnesses to prove their status as free persons.
The •anafê jurist Sarakhsê (d.482/1090) argues that a person of unknown status is normally, according to the outward appearance (û×hir), to be considered a free person, but at the same time he confirms the victim's obligation to prove his status of freedom before he can receive the blood price, in case the perpetrator claims that the victim is a slave.This is done, he argues, because the original status of freedom of mankind can get lost.9Thus he does not see an inconsistency between the original status of freedom of mankind and the institution of slavery, but does not discuss the problem further.10He focuses on the ascertainment of the legal status (free or slave) and aims to preserve the institution of slavery.A transgression of the boundary between freedom and slavery is thus impossible.The coexistence of freedom and slavery in Muslim society in connection with a clear tendency to preserve the institution of slavery thus led to the restriction of this principle in legal practice when both institutions came into conflict.With regard to this situation it seems interesting to put the focus on the legal discourse in the "pre-literary time", which evolved around different forms of the forfeiture or restriction of freedom.In this discussion jurists seem to have held opinions with regard to debt-bondage, self-sale and self-dedition as well as sale of free persons which differ greatly from the later consensus in the "literary period".Since the sources for these discourses require special methodological approaches, a short introduction into research, methods and the questions will be given.

Questions, methods, research
I will try to answer the following questions: 1.What kinds of forfeiture of freedom were discussed in "pre-literary time (1 st /7 th and 2 nd /8 th centuries)" and how were they discussed in the different centres of the early Islamic empire and by whom?
2. How has the discourse of this early period, the "pre-literary time", to be evaluated in contrast to the ignorance of this topic in the emergent legal literature from the 2 nd /8 th century onwards?
There are two assumptions underlying my arguments: 1.An analysis of early Islamic law, also in an embryonic stage, is not possible without reference to the legal situation in Late Antiquity. 11In this context I consider the debate on the Islamic or non-Islamic origin of Islamic law as fruitless.Whereas some protagonists argue that pre-Islamic laws heavily influenced Islamic law and connect Islamic concepts and institutions to parallels in the laws of Late Antiquity, others 12 have denied this and have argued in favour of the parthenogenesis origin of Islamic law from the textual sources, i.e.Qur'×n and Sunna.The focus of research, according to my opinion, has to be shifted: the process of legal development after the victory of Islam in the 1 st /7 th century has to be understood on the basis of legal  11 Since I am convinced that the legal systems of Late Antiquity have to be taken into account I disagree with Motzki, H., Die Anfänge der islamischen Jurisprudenz, Stuttgart, 1991, 4, who explicitly leaves out this aspect and concentrates on the Islamic sources.
12 For a detailed survey of research and an analysis of the problem of the Islamic patronate, however, see Crone, P., Roman, Provincial and Islamic Law, Cambridge, 1987.practices which prevailed in the region which was to become Islamic.This is the level of legal practice and regulations.The questions here are: What legal rules existed in what area?What was the legal practice which might have differed from legal rulings?Muslim jurists had to cope with this situation on the practical level, being confronted with cases of self-dedition and sale of children and, on the theoretical level, when developing a new legal system based on a religious attitude and new ethical and moral standards.I shall therefore give the normative regulations and/or legal practices with regard to the problem of enslavement and bondage of free persons in the different areas in Late Antiquity, as old Oriental law, Roman law, Christian law, Byzantine law, Jewish law, Graeco-Egyptian law and Sasanian law.The question is not whether Muslim jurists uncritically adopted or vehemently rejected the rules, practices and norms, but how they dealt with these practices, norms, and perhaps with legal texts with regard to the different legal questions, how they discussed these against the settings of their new religion and accepted, rejected or changed them in order to adapt them to their new religious and ethical standards.
2. For the "pre-literary period", the 1 st /7 th and 2 nd /8 th centuries, we have traditions containing legal opinions and rulings as well as decisions from early Muslim jurists, and even an alleged ruling of the Prophet according to which he ordered the sale of a free person into slavery.These traditions and sayings have not been preserved in the legal literature of the main schools of law but in works of marginal schools (Ibadites, Zahirites), they have not been immortalized in the canonical six books on the sayings of the Prophet but occur in early çadêth literature and such works that contain so-called "weak" sayings of the Prophet and also in historical and biographical literature as well as in commentaries on the Qur'×n and other works related to the Qur'×n.Thus, the legal discourse on freedom of the "pre-literary period" has to be reconstructed from other than the legal sources of the "literary period".The problem is a methodological one and is connected to the question of the much discussed authenticity of aç×dêth, the traditions which contain sayings and actions of the Prophet, and the traditions of his companions and successors: Do they go back to these persons or have they been ascribed to them for whatever reasons?The discussion of this question is controversial. 13As Crone puts it: For practical purposes it is impossible to prove a certain tradition authentic (with a very few exceptions) and it is often impossible to prove it unauthentic, too.The allocation of the burden of proof is thus of decisive importance.Defenders of the authenticity of •adêth hold that traditions should be presumed to be genuine unless the contrary can be proved, whereas followers of Schacht argue the opposite; and since the contrary usually cannot be proved, the result is a straightforward clash between those who treat •adêth as essentially authentic and those who treat it as evidence for later developments. 14have argued elsewhere that my position is near that of Schacht, meaning that I am sceptical towards the authenticity of the Prophet's sayings as well as the sayings of his companions, whereas I would be more inclined to accept the authenticity of sayings of the successors, if there are no reasons (as e.g.contradictory statements of one person) to doubt them.15 In this point I differ clearly from Motzki, who, in a review article of my book, focused on the dating of the Prophet's alleged sale of a free person into slavery (the Surraq-case) and argued for the authenticity of this çadêth, meaning that the çadêth belonged to the Prophet's time in Medina and contained the decision of the Prophet.I had, on the basis of an analysis of the isn×d and matn, classified this çadêth as belonging to the 1 st century Egyptian legal discourse.16 Be that as it may: it has to be stated that any attempt to reconstruct the early Islamic discourse on the question of freedom and slavery -as the reconstruction of any other discourse of that time -remains hypothetical.This is especially true for the attribution of certain rulings to certain persons and -as a consequence -to certain regions of the Islamic empire.What, however, can be stated clearly is that a discourse on this topic did take place.Different positions can be reconstructed (even if it remains uncertain whether the persons named held the alleged opinion or whether it was ascribed to them).Furthermore, the possibility that a legal ruling was attributed to a person of a high religious or social standing allows us to interpret it, at the very least, as an attempt to assign prestige to a truly important and controversially discussed legal opinion of great social relevance.There can be no doubt about the existence of a legal discussion on the forfeiture of freedom and -to go one step further -about the existence of the underlying socio-legal problem connected with the sale of free persons in the "pre-literary period".
Thus we have to deal chronologically with the following categories: 1. Legal rulings and practices in Late Antiquity with regard to the sale of children, etc.
2. The legal discourse of the "pre-literary period" in Islam, i.e. the 1 st /7 th and 2 nd /8 th centuries.
3. And finally, the legal discourse as reflected in the fiqh-literature from the first legal texts in Islam in the late 2 nd /8 th century, the "literary period" of Islamic law.
In the following part first the legal rulings and practices of Late Antiquity are given, then the consensus of the "literary period" is shortly summarized to depict the discrepancy and in the end the legal discourse for the "pre-literary period" on the different topics is reconstructed, so that the difference to the pre-Islamic rulings and practices as well as to the Islamic later consensus can be outlined.

The legal discussion on the forfeiture of freedom in the 7 th and 8 th centuries
The loss of freedom, enslavement and bondage happened because of debt, as the sale of free persons due to poverty or as a punishment.Enslavement as a punishment existed in Roman law, but there are no examples in the Islamic sources as far as I know.

Enslavement because of debt, debt-bondage and self-dedition
Concerning enslavement or bondage because of debt, three degrees have to be distinguished, all subsumed under the legal term of "execution against the person" -in contrast to "execution against the property" -.This execution against the person takes different forms: the (a) sale of a free person into slavery; (b) debt bondage, in which the debtor had to work for the creditor either for a certain time or until he could pay off his debt and was set free; (c) self-dedition, mostly, as it seems, into bondage, not into slavery.17 Ad a) Late Antiquity: Enslavement because of debt and debt-bondage was known in old Oriental law 18 as well as Roman law, 19 but seems to have fallen into disuse.In Late Antiquity there is a clear tendency to restrict the execution to debt bondage and, later on, to imprisonment. 20Debt bondage was obviously legally acceptable in Sassanid, 21 Jewish, 22 Egyptian, 23 Christian, 24 and Roman Provincial law. 25 In practice it seems to have been a well-established institution to satisfy the creditor's claim in the respective territorial area.Self-dedition occurred again in old Oriental law, 26 in Sassanid law, 27 in Jewish law 28 and in Graeco-egyptian law. 29The decision to give oneself into slavery was accepted in Christian law 30 and existed in Roman law. 31Literary period": The Islamic law of obligation does not allow enslavement owing to debt or debt bondage at all, not even self-dedition.It only knows imprisonment because of debt.This meant that the debtor was arrested if he refused to pay.He was released either when he paid or after his inability to pay became clear.Imprisonment was thus only used to exert pressure on the debtor, not to punish him.32 The creditor had no access to the debtor and could not force him to work.33 "Pre-literary period": Perhaps the most interesting legal ruling refers back to the Prophet, attributing to him the sale of a free person into slavery.The story has been preserved in different variations, ranging from the simple statement of the sale of a free person because of debt to intricate narratives.34 The story can be summarized as follows: a man called Surraq ("brazen thief") lives in Medina and enters into business with a Bedouin or with the people of Medina.Having received merchandise -sometimes a camel, sometimes clotheshe disappears without paying, sells the merchandise and wastefully spends the money.The vendor complains to the Prophet and the Prophet orders Surraq to return either the merchandise or pay for it.As Surraq is not able to do so, the Prophet advises the creditors to sell Surraq on the market; surprisingly, however, in most versions the creditors decide to set Surraq free, arguing that they will deserve God's reward.
Here is one variant given as an example, which is interesting insofar as Zayd b.Aslam (d.136/753), who reports this story, meets this man, Surraq, in Egypt, where he tells him the story which of course allegedly goes back to the Prophet's time in Medina: 35 Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353  Aslam: I saw an old man in Alexandria, who was called Surraq and I said to him: "What kind of name is this?"He answered: "The Prophet called me so".I asked: "Why?"He answered: "I came to Medina and told the people that I would receive property (m×l).They made transactions with me, but I wasted their property and they brought me to the prophet".He said: "You are a thief" and he wanted me to be sold at the market for the price of four camels.My creditors asked the purchaser: "What will you do with him?" and he said: "I will let him go free".So the creditors said: "We cannot renounce more than you God's reward" and they set me free.
Surraq seems to be a fictive person.His name is found in the different isn×ds and also in the special literature on traditionalist, sometimes under the name of "Surraq", sometimes with another first name, and, according to some sources, he even was a companion of the Prophet. 36There are different chains of transmitters and several versions of the texts, sometimes with, sometimes without the Egyptian frame story.The çadêth clearly circulated in Egypt because of the names of Egyptian transmitters in some of the as×nêd.According to my research, we can trace back the çadêth only to the 1 st century in Egypt, because there are too few indications as to confidently verify its authenticity. 37everal points have to be taken into consideration: 1.The story is difficult to interpret, both in terms of its formal aspects and of contents.It reveals many inconsistencies in its contents and style and transmission.There is no independent version of this story which can be traced back to Medina. 382. The fact that the Prophet is said to have acted this way lends the tradition a special prestige.We therefore have to date the emergence of the tradition before the establishment of the consensus in the "literary period" of Islamic law.3. The story contains a form of execution against the person which seems to have no longer been in use in Late Antiquity, beside attributing a decision to the Prophet which is, according to the law of the "literary period of Islam", completely unacceptable.4. The alleged ruling of the Prophet contradicts Qur'×n (2:280), a verse which advises the believer to have patience with a debtor.It also contradicts the Constitution of Medina, according to which believers should not forsake a debtor among them, but give him help. 39Furthermore, the jurist Zuhrê (d.125/742) from Medina states: "When at the time of the prophet a person got indebted, we do not know that a free person had been sold for this". 40ith regard to story's contents it has to be asked: How could the Prophet, the leader of the community in Medina, order the sale of a free person when at the same time the creditor felt obliged to leave Surraq free -for religious reasons?The creditor's action makes sense before the backdrop of the rulings in the Qur'×n and the Constitution of Medina.However, in this case the Prophet's alleged order would be against the Qur'×nic ruling as well as against the Constitution.
In my opinion we are dealing here with the polished narrative of a typical legendary story: The Prophet, knowing how events will unfold, orders the sale of Surraq, being sure that the sale will not happen, and thus Qur'×n (2:280) will not be violated.And everything evolves as he had known before. 41owever, the çadêth, even if not authentic, was useful for the discussion in the context of this legal problem and surely was made use of.It was somehow discarded from the canonical legal literature which emerged in the 2 nd /8 th and 3 rd /9 th centuries.It survived only in marginal sources, confronting the jurists who came across it with the problem of how to evaluate an alleged decision of the Prophet which clearly contradicted the later consensus.Later Muslim jurists either chose to ignore this çadêth or called it "weak" and rejected its authenticity. 42he story, however, made its way into a modern Egyptian court: 'Ashm×wê, the Egyptian jurist, discussed this prophetic ruling in a judgment of the year 1987 on interest. 43d b) With regard to debt bondage several traditions, especially from Egypt and Syria, have been preserved, but not for the •ij×z. 44n interesting example is the alleged letter of the caliph 'Umar b. 'Abd al-'Azêz (r.98/717-101/720) to his Egyptian judge 'Iy×Ý b. 'Ubaydall×h (d.112/730), preserved in al-Kindê's (d.349/961) book on Egyptian judges.In this letter the caliph answers a legal question this judge had obviously posed before.
Letter of 'Umar b. 'Abd al-'Azêz, year 99/717 to 'Iy×Ý: 45 You mentioned a man who had bought female slaves with delay of payment together with an increase of the amount.Then he sold them only for a third of the sum.His debt amounted to 300 Dinars.You told me that his creditors came to you and asked you to sell the debtor to them (creditors)/to sell the debtor for their benefit (yub×'u lahum: he was sold to them/he was bought (by someone else?) for them?).You handed him over to them, advising them to wait for my answer.Order the man to work off his debt (fa-l-yas'a fê llaÝê 'alayhi).He is responsible until he has paid off his debt.Do not allow the creditors to sell him, but advise them to handle him with care, so that God will give what is upon the debtor.The caliph's letter comprises the following points: 1.The decision what shall happen to the debtor has to be a court decision.The creditor cannot force the debtor to work without a judgment.
2. The debtor has to work off his debt, i.e. he becomes a bondman as long as he has not paid the complete sum.
3. He is not a slave, because the creditors cannot sell him.4. Furthermore, the creditors are obliged to treat the debtor adequately.This is argued as being in their interest, so that the debtor can work and pay back his debt.
Thus, the caliph, according to this letter, explicitly accepts debt-bondage and explicitly rejects the enslavement of the debtor.All traditions which seem to go back to the •ij×z have common links in the Iraq so that enslavement because of debt and debt bondage cannot be proved to have existed in Medina and Mecca (Schneider, Kinderverkauf, 198). 45Al-Kindê, 'Umar b.Yùsuf, Kit×b al-quÝ×h, R. Guest (ed.), Leiden, London, 1912, 336 ff.
'Ubaydall×h b.Abê Ja'far lived at the same time as 'Iy×Ý, both were Egyptian judges.Several other traditions deal with this alleged decision of 'Umar b. 'Abd al-'Azêz. 47The Egyptian scholar Ibn Lahê'a (d.174/790) transmitted versions of the Surraq-çadêth 48 and Layth several traditions with regard to debt-bondage.Ibn •azm stated that Layth himself voted for debt-bondage. 49There are, in the end, strong indications that 'Umar b. 'Abd al-'Azêz actually decided in favour of the debt-bondage. 50hereas the Egyptian traditions use the verb sa'× there is another group of traditions concerning 'Umar b. 'Abd al-Azêz which seems to have circulated in Iraq and uses the verb ×jara. 51hereas 'Umar seems to have voted for debt-bondage, he is said to have decided against slavery in another case: a dhimmê-couple was brought before •asan al-Baórê because the husband was accused of having sold his wife.Again a letter allegedly was written to the caliph, and in this case 'Umar advised •asan to punish both -husband and wife -and to throw them into prison. 52This makes sense because first of all the husband had intended to sell his wife into slavery and not into debt-bondage.Sale into slavery had been forbidden by 'Umar in his letter to the Egyptian q×Ýê.Furthermore, the husband acted on his own and thus committed a crime whereas debt-bondage had been considered by 'Umar as a court decision and not as a private act.It can be stated without doubt that debt-bondage -but not enslavement because of debt (or because of other reasons) -was well known and practised in Egypt in the 1 st century.
Ad c) Self-dedition Self-dedition meant that a person gave or surrendered himself or herself into bondage (not enslavement, as it seems) out of his/her own free will, not perforce a legal judgment.As in the case of debt-bondage, the main reasons for this were financial difficulties and debts.
"Pre-literary time": The Arabic terminology is: "he acknowledged the status of slavery / to be a slave against himself: aqarra annahu 'abd".Most self-dedition traditions circulated in Iraq.The following tradition is from Rabê' (d.around 190/806), a jurist in Basra: I asked him (Rabê', I.S.) with regard to a Muslim who had bought a man on the market.The purchaser had asked him and the man had said that he was a slave.Later on the man found out that he was a free person.Now, though he could not find the vendor again who had sold the man to him, (Rabê') answered: "He does not own the man, but the purchaser can let him work (yastas'êhi), if he does not get his money, as if he were a free man, who acknowledged the status of slavery against himself (ka'annahu aqarra bi-l-'ubùdiyya wa-huwa rajul çurr)". 53 his time Rabê' was leader of the Basrian Ibadites and he was muftê. 54In this case a man seems to have sold himself, explicitly stating his status as a slave to the purchaser.When it turned out that he was a free person Rabê' decided that he was not a slave, arguing that the purchaser did not own him, but as the purchaser had a financial loss the man had to work off "as if he were a free man, who acknowledged the status of slavery against himself".From this text the conclusion can be drawn that self-dedition was a well-known practice and that it was dealt with in the same way as self-sale, in which case obviously the person had to work to pay off the price.Rabê' uses the verb to "let work", but it is not clear from the context, whether debt-bondage with the creditor's right to let the debtor work is also meant here.
With regard to self-dedition the verb aqarra is used.It means in later legal terminology to acknowledge (e.g. a child as one's own child) and in the context of a criminal case to confess.In other texts men are given as pawns. 55Decisions in favour of self-dedition are ascribed to 'Umar b. al-Kha÷÷×b. 56All these traditions have a common link with Qat×da (d.117/735) in Basra so that the traditions circulated in Basra, but there is no proof that they really go back to the caliph living in Medina. 57'Alê b.Abê Í×lib (d.34/656), the fourth caliph, is said to have decided that a person who acknowledges the status of slavery against himself is a slave, but again this decision might not go back to 'Alê. 58Ja'far al-S×diq (d.148/765), living in Medina, is said to have accepted self-sale, but the tradition clearly circulated in Iraq. 59The Kufian scholar Ibr×hêm al-Nakha'ê (d.95/713) has several traditions in favour of self-dedition. 60All these traditions do not prove automatically that the persons named actually decided this way, but they surely prove that self-dedition was a known -and at least partly accepted -practice in Iraq, whereas this practice is not confirmed for Medina.There were other voices, too, in Iraq: Sha'bê (d.around 95/713) in Kufa decided against self-dedition, as did 'A÷×' (d.114/734) in Mecca. 61'A÷×' stated explicitly that a free person was no slave.
Thus the Egyptian texts focus on debt-bondage, Iraqi ones on self-dedition.It is possible that both institutions served as a means to guarantee the creditor's claim to the debtor's money.Regrettably, the texts are often too short to reveal more information about reasons, forms and function of these different legal institutions.

Enslavement of family members
"Late Antiquity": Sale of wives and especially of children occurred through in the old Oriental laws. 62With regard to Late Antiquity, this issue has to be seen against the backdrop of the position enjoyed by the pater familias in Roman law and his right to have family members at his disposal.In Roman law the paternal authority originally meant the right of the father to kill the child, to sell or abandon it (vitae necisque potestas). 63In Late Antiquity this right was restricted, but never completely abolished.Diocletian (r.284-305 a.D.) prohibited the sale and pawning of children, 64 but Constantine legitimised it again under certain conditions in 313 a.D., 65 as did Justinian (r.527-565), who restricted it to cases of extreme poverty and allowed the father to get the child back. 66The different stages of the legal discussion on the sale of children show that it was a burning social issue throughout the whole period of Antiquity.It was particularly pressing in times of natural disasters, such as in the 4 th and 5 th centuries.Whereas it was not always legally acceptable it was most certainly practised all the time. 67 quite unrestricted father's power over the family members is to be found also in Sasanian law, 68  mother) had the right to sell his minor daughter if he saw no other possible means to secure the family's survival.A daughter was sold when the family was in economic difficulties, or when the family was about to lose or had already lost its house.It preceded the taking of a credit.The sold daughters had to serve their new masters as concubines, i.e. the sale included the right for the purchaser to have sexual relations with the girl. 69In Graeko-Egyptian law children were sold and given as pawn.There are documents for the years between 730 and 785 -already the Islamic time -according to which children were sold to an Egyptian monastery. 70There is no source on the sale of children in pre-Islamic Arabian law.The Qur'×n (45:58) forbids the killing of new born baby girls.
To summarize: Whereas the sale of a wife was not always legally accepted, the sale and pawning of children often was.Especially the sale of children seems to have been a common practice.As a matter of fact, it often comprised sexual services for the girls.
In the "literary period of Islamic law" the sale of free persons was prohibited, as stated above.
Sa'êd b. al-Musayyab was asked with regard to a man who had sold his child.He answered: If he sold a person of age and agreeing, then -if the purchaser had sexual relations with her -a woman will be punished with çadd and the father with a painful punishment.The father has to give back the price.A child (resulting from this relation) has the status of a legitimate child.A (sold) male of age will be punished as his father with a painful punishment and the father has to give back his price as a fine. 71e text seems to be a fatw× and not a judgment in a legal case, because Sa'êd discusses different possibilities.At the same time, Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353-382 ISSN 0211-3589 however, he restricts the discussion to cases of children who were of age and had consented.
From Sa'êd's order that the father has to pay back the price, it becomes clear that the sale of a daughter as well as of a son is illegal and this practice has to cease.However, he considers the sexual relations between the purchaser and the girl resulting from the sale as being illegal as well, and the punishment to be meted out is in line with the new and harsh Islamic standards for proper moral and sexual behaviour: with çadd. 72But why is the child then legal? 73And why does he not take into consideration that the sold boy, too, was abused?Sa'êd stops his casuistic argumentation here.He does not discuss other possible variants, e.g. the case -which according to the legal practice in Late Antiquity surely prevailed -that a major or minor-aged girl was sold on the basis of the paternal constraint against her will or that a minor-aged girl was sold and subsequently consented, in which case it had to be discussed whether the consent of a minor was acceptable.He ignores the possibility -which, according to the sources of Late Antiquity, seems to have been the social reality -that the girl might have been forced into the sale by the father out of pure poverty.And he does not discuss the (later) Islamic concept of ijb×r, according to which the father had the right to marry his minor child, but had to use his paternal constraint with respect to the welfare of the child and to keep the dower he received for her until she reached puberty.In the discussion of the case he not only ignores important legal facts but also completely the underlying social situation (poverty) and the socio-legal family relations (paternal power) as well as the social pressure which normally prevents children to act against the decisions of their parents.He rather focuses on the -prohibited -sexual relations resulting from the sale between the purchaser and the girl. 74As a consequence, the original victim of a trade -the girl  73 In classical Islamic law a walad al-zin×' cannot be recognized as legitimate, see Schneider, "Kindeswohl im islamischen Recht", Recht der Jugend und des Bildungswesens, 2 (2006), 185 ff. 74Motzki, H., "Muslimische Kinderehen in Palästina", Die Welt des Islams, 27 (1987), 82-90, analysed fat×w× of the 17th century in Palestine and argued that fathers and other male relatives gave their -minor-daughters into marriage, received the dower (which they, according to the law, had to keep until the girl became major) and used the money for other purposes (p.87).He states that either poverty or greed were the reasons (p.88).These cases show that practically the "sale" of daughters occurred -as -is turned into a liable person who is subjected to the harshest possible punishment: çadd in case of illegal sexual relations is either, according to the Qur'×n, to be punished with 100 lashes or, as fixed in later law, in certain cases with stoning to death for a person being muçóan, i.e. having had sexual relations in a legal relation. 75t the same time, however, the Muslim jurists surely knew about the social conditions under which the sale of children occurred: Zuhrê, another jurist, dealt with a similar case.Mentioned in the case presented to him for judgement was the -legally irrelevant -excuse of the father, namely that poverty had forced him to act in this way.Zuhrê makes no reference to this in his decision.
Al-Zuhrê reported that a man sold his daughter and the purchaser had intercourse with her.The father (said): "Poverty forced me to sell her".Zuhrê decided: "The father and the girl are punished everyone with 100 lashes, in case the girl was of age.The purchaser gets back the price but has to pay dower to the girl because of the intercourse he had with her.However, the father is obliged to pay this dower back to the purchaser as a fine.If, however, the buyer knew that she was a free person, this is not the case.Then he has to pay the dower and the father does not have to give it back to him and the purchaser is also lashed 100 times.In case the girl was not a major, only the father is punished". 76ike Sa'êd, he decided that the father and the girl were to be punished with 100 lashes (this is again çadd).As in Sa'êd's ruling, the sale is considered illegal because the purchaser gets his money back.But now the issue of dower payment plays a role: the purchaser has to pay a dower, meaning that the sale is retroactively turned into a marriage and thus legalized.Then, however, the punishment of the girl with 100 lashes makes no sense, because this is the punishment for illegal sexual relations.The retroactively validated marriage should have turned the illegal sexual relations into a legal relationship. 77uhrê only takes majority age into consideration, not consent.He does not discuss the question whether or not the consent of the daugh-Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353-382 ISSN 0211-3589 372 IRENE SCHNEIDER it seems: all the time -but was dealt with not as "sale" but as a part of the (legal) child marriage with the illegal consequence that the father kept the dower. 75Goichon, A-M., "•add", in EI 2 , 3, 20-22. 76'Abd al-Razz×q, al-Muóannaf, 6, 542 ff.
ter makes any difference.Her exemption from punishment if she was a minor can be explained with the general exemption of minors from çadd punishments.But perhaps it could be argued that in this case the paternal constraint on a minor is acknowledged.As a consequence, Zuhrê, who was confronted with an act of sale of a child out of poverty, as Sa'êd, ignores the social reality and focuses on the sexual relationship, which has to be punished.A further inconsistency in Zuhrê's argument is that he lets the purchaser pay the dower to the girl, but that -in case the purchaser knew her status -"the father" has to give the dower back.According to Qur'×n the dower is to be paid to the bride (4:4) and not to the father.Only in case the girl is a minor he has to keep it for her but is not allowed to spend it.Both legal rulings, by Sa'êd and Zuhrê are inconsistent and difficult to understand.They do not reveal an intense legal (and social) reflection of the problem.
Summarizing, it can be stated that the sale and enslavement of family members, especially children, was rejected by the Muslim jurists.For this legal theme there are mainly traditions from the •ij×z, as quoted above, but also from Ibn 'Abb×s (d.around 68) from Mecca. 78The Kufian scholar Sufy×n al-Thawrê (d.161/777) also decided in this way. 79Normally both -husband and sold wife -are punished.Only in one case this seems not to have been the case: the Umayyad governor Yùsuf b. 'Umar (d.127/744) asked the Kufian jurist and judge Ibn Shubruma (d.144/761) whether to punish a husband who sold his wife with qa÷' -the punishment for thieves -.But Ibn Shubruma (d.144/761) rejected this, comparing women to am×na, entrusted property.Yùsuf decided to beat the husband more than the qa÷'-punishment80 would have been.cording to all pre-Islamic laws.In old Oriental and Jewish law especially the abduction of children was forbidden. 82In Egypt forced labour existed. 83In Roman law it was prohibited, but an exception was made by Justinian -beside the sale of children -in case a free person sold himself with intent to defraud, taking a part of his price (pretii participandi causa).In this case -which is similar to self-sale or self-dedition -purchaser and purchased person acted together and divided the money between them. 84n the "literary period of Islamic law" the sale of a free person was not allowed.But there is one interesting decision in comparison to the cases of the sale of family members, especially wives, just dealt with.Shayb×nê (d.189/805) discusses the purchase of a woman with whom the purchaser had intercourse before it turned out that she was a free person.This is a case of a sale of a free person, not of a family member.However, the discussion can be compared to Sa'êd's and Zuhrê's discussion as quoted above in the case of sold daughters.
In this case, Shayb×nê decided that the purchaser had to pay dower (mahr), even if he had not known that she was a free person.Shayb×nê states that his colleagues in Medina would have decided differently in such a case: they would have decided that the purchaser only had to pay if he knew her status as a free woman.This is in agreement with Zuhrê's decision quoted above.The jurists from Medina argue, according to Shayb×nê, that the woman had been legally bought at the slave market. 85Shayb×nê sides with the woman in this case and awards her the dower because, he argues, she might have been raped or abducted.However, he does not go so far as to consider punishment of the purchaser. 86He also does not consider -as his colleagues from Medina in the case of a sold daughter -to punish the woman for the illicit intercourse.His perspective of the case is the perspective of the purchaser and to some extend the perspective of the find out whether the Muslim jurists decided on the basis of cases presented to them or discussed legal problems hypothetically or even had texts they commented on.However, the different opinions attributed to Ibr×hêm an-Nakha'ê reflect a controversial debate in this time, which seems to have taken place in Kufa, where he lived.

Summary
There has been a discussion on the following issues in "pre-literary time": enslavement because of debt, debt bondage and selfdedition, sale of family members, and the legal status of foundlings.Different cases from different perspectives were discussed with differing results.Legal institutions were more or less carefully described, and in several cases even clear punishments were prescribed.Debt-bondage and self-dedition and the enslavement of foundlings were accepted by some jurists -other than in later legal literaturewhereas the sale of free persons was prohibited and punished from the beginning.In this context the question who was to be punishedespecially in the case of sold daughters -and what the punishment should be like (Qur'×nic or not Qur'×nic) was discussed with different results.
A second interesting result concerns Egypt as a hitherto neglected centre of legal discourse which played an important role beside the •ij×z (Mecca and Medina) and Iraq (Kufa and Basra).
With regard to the question who discusses what problems and where the discussions took place the answers have to be given more cautiously because of the methodological problems to reconstruct early Islamic history and legal rulings as outlined above.There is, however, strong evidence that the çadêth according to which the Prophet sold Surraq circulated in Egypt in the 1 st /7 th century and there are so far no indications that it was firmly rooted in the social history of Medina. 100Zuhrê's statement has to be taken seriously that he did not have information on the sale of a free person by the Prophet.There seem to be no independent traditions proving the existence of debt-bondage or enslavement because of debt in the •ij×z, but it was in Egypt that debt-bondage in an (authentic?) letter of 'Umar b. 'Abd al-'Azêz was considered a legal means to satisfy the creditor's claim.The jurist Layth b.Sa'd gave also such a judgment.Thus, there was something like a "prevalent discourse" in the regions: whereas Egypt accepted the debt-bondage, in the Iraqi towns Kufa and Basra self-dedition (but not, as it seems, debt-bondage) was widely accepted whereas the jurists from the •ij×z seem not to have been inclined to accept any forfeiture or restriction of freedom.With regard to the sale of daughters and wives, traditions from Iraq and the •ij×z can be found.In comparison to the situation in Late Antiquity a new sexual moral attitude comes up: sold daughters (especially when they were major) and wives were punished together with the father/husband who sold them.The •ij×zês seemed to be inclined to punish them especially for the sexual relation resulting from the sale of a daughter.They referred to the Qur'×nic punishments for illegal sexual relations.In Iraq the Qur'×nic punishments were not considered adequate.This focus on the sexual crime, actually a consequence of the sale, was given up in later legal literature: Shayb×nê shows a practical -Iraqian?-solution of the problem by retroactively turning the illicit relation into a marriage.
In the discussions of the "pre-literary time" the Roman concept of patria potestas was not recognized, the social situation was not taken into account.But also the concept of wil×ya as existent in later Islamic law is not yet discussed.
However, the different judgments reveal no uniform concept of freedom at that time.They merely reflect the problem of securing the existence of both institutions: freedom and slavery in the early Islamic society.This has to be seen before the backdrop of Late Antiquity, where at least the sale of children and debt-bondage were normal legal practices.In this context Ja'far and Ibn Shubruma equated women with -trusted -property (which had to be safeguarded), whereas the •anafê jurist K×s×nê (d.586/1191)101 explicitly stated that a free person was no property.This was the communis opinio in later legal literature.
Only rarely did the caliphs intervene.However, 'Umar's letter to his Egyptian q×Ýê could be authentic.Among the persons giving opinions and judgments only a few judges can be discovered: 'Iy×Ý b. 'Ubaydall×h and Ibn Lahê'a in Egypt and Ibn Shubruma in Kufa as well as •asan al-Baórê in Basra were judges.Whereas Schacht argued that the early q×Ýês, officials of the Umayyadd administration, by their decisions laid the basic foundation of what was to become Islamic law,102 the situation in this legal field is different.The decisions of 'Iy×Ý (for debt-bondage) and of Ibn Shubruma, who decided that women were to be dealt with like entrusted property, and •asan al-Baórê, who decided to punish husband and wife in case of the sale of the wife, did not become the basis of later Islamic law.Most decisions seem to have been given by jurists, and in many cases they are not based on the Qur'×n.These discourses, judgments, discussions and opinions of the jurists which were presented here reflect an independent examination of the legal practice and perhaps reveal a knowledge of legal rulings and legal discussions of Late Antiquity.The reconstructed discourse indicates that Muslim jurists in the first two centuries did not borrow legal rulings from the pre-Islamic laws, but instead critically evaluated the cases, reaching decisions which complied in their opinion with the new Islamic standards.The arguments and discussions, however, are not always connected to the underlying social situation and do not reveal a thorough legal reflection of these cases.This is especially true for the discussion of what to do with sold daughters who were used by the purchaser as concubines.Qur'×nic rules are not always sufficiently applied, e.g. with respect to the dower.On the other hand, Qur'×nic punishments are applied quite often, as the example of the çadd-punishment for sold girls shows.As a consequence, it can be summarized, that the decisions do not reflect a high standard of intellectual analysis.All this reflects a jurisprudence which was somehow based on Qur'×nic analogies (if still crude ones), on new moral standards aiming to restrict sexual relations to conjugal relations or relations with slave girls who were clearly slaves and on common religious sentiments.
With regard to the second question asked at the beginning, it has to be stated that the "pre-literary" phase is an -independent -phase in the development of Islamic law, at least in this field of law. 103Problems which were in later legal literature ignored, were discussed controversially, although if not always in an intellectual satisfying way.The reason for ignoring this problem of great social relevance cannot lie in the disappearance of practices such as the sale of free persons and debt-bondage.It is very unlikely that the social circumstances determining such practices simply disappeared with the emergence of Islam.The reasons why legal topics -even of such great social and legal relevance -remained outside this mainstream literature are surely complex and cannot be discussed here.But they must be sought in the character of this literature.Here only some considerations can be made.
Fiqh-literature is not, as has been upheld for a long time, purely fictive. 104However, it could be argued that certain discourses gained admission into certain genres of literature and not in others.Whereas the discussion of the Surraq-çadêth concerning a legal topic can be found in (non-canonical) çadêth-literature and tafsêr books, but not in fiqh-literature, cases of the sale of children are discussed in biographical and again non-canonical çadêth-literature, sometimes in fat×w×.This shows a clear separation of the topics dealt with in the different genres of literature.
The fiqh-literature, evolving around the 2 nd /8 th century, is based on the discussion of a set of practices, questions and rules.It did not generate general discussions of themes.Furthermore, it remained obviously focused on certain topics.The problem of forfeiture or restriction of freedom was left out.As a consequence, the jurists of the following centuries did not develop proper legal instruments to deal with this problem.No clear definitions of freedom and slavery and no general discussions of the problems arising out of the coexistence of these two institutions in the same society can be found.
Here it seems interesting to take a look at Roman law.The Roman jurists, too, did not develop a systematic of natural law (ius naturale) but used the term ius naturale in different contexts with different meanings.As a consequence, the institution of slavery on the one Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353-382 ISSN 0211-3589 380 IRENE SCHNEIDER hand and the status of freedom of every man on the other hand were both seen founded in the ius naturale. 105A parallel can be drawn to the Islamic discussion of the basic principle of freedom.It was discussed, e.g. in the context of the law of procedure, but not analysed with all its implications on a general level.
As a consequence, we would have to consider legal literature not as fictive, but somehow as reflecting or focusing on a special brand of discourse of legal problems, on juristic skills by developing the system of casuistic argumentation but not as a literature trying to discuss problems with deeper philosophical import.
How then can we reconstruct legal practice and legal reality, if not from legal literature?The history of Islamic slavery has still to be written. 106For Egypt in the 19 th century, Lane reports the sale of children: "Hence, it is not a very rare occurrence, in Egypt, for children to be publicly carried about for sale by their mothers or by women employed by their fathers". 107What Lane considered to be a sale was perhaps -as Motzki showed for the 17 th century Palestine -the practice of child marriage, in which fathers -against the law -received their daughter's dower. 108Motzki based his argument on a deep knowledge of fiqh-literature and a fat×w×-collection.He could not have analysed the practical cases without knowledge of the legal norms laid down in the fiqh-literature.
Debt-bondage surely existed in the feudal forms of peasant exploitation in rural areas.Here sources on the economic history of the villages could furnish information.Sato 109 has described relations between the tenant (muq÷a') and the farmer (fall×ç) in 13 th century Egypt as being a bond of hard labour (sukhra).However, a study connecting sources of the rural economic situation and legal prescriptions could reveal more information on this legal practice.
To conclude we can say that a topic of great social and legal relevance which jurists had once discussed controversially was ignored in the legal literature of Islam -despite its social and legal brisance -.As a consequence, the reconstruction of legal practice has to take into account both: legal literature and other genres of literature such as the fat×w×, but also sources for the social history, which so far have not been analysed under this aspect.

3.
Enslavement and sale of free persons "Late Antiquity": Other than the sale of family members and especially children the sale of a free person seems to have been illegal ac-Al-Qan÷ara (AQ) XXVIII 2, julio-diciembre 2007, pp.353-382 ISSN 0211-3589 FREEDOM AND SLAVERY IN EARLY ISLAMIC TIME 373 -382 ISSN 0211-3589 FREEDOM AND SLAVERY IN EARLY ISLAMIC TIME 355 Kinderverkauf, 38-47;for the special position of Ibn •azm see Ibn •azm, Al-Muçall×, M. Sh×kir (ed.),Cairo, 1928-1933, 8, 172, 173, who argues that the debtor should work off his debt.For the institution of the so-called mul×zama, see Schneider, Kinderverkauf, 45-47.Mul×zama in the •anafê school of law meant the supervision of the debtor by the creditor.In case the creditor realized that the debtor accumulated again money, the creditor could demand it from him.He could not, however, make him work.34For the collection of the variants of this çadêth see Schneider, Kinderverkauf, 74-122.