consent in concubinage

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. View all Google Scholar citations Marie Failinger, Elizabeth Schiltz, and Susan J. Stabile (New York: Routledge, 2014), 178–79. Doubt in Islamic Law, 50n6. Graeme Wood, personal communications with the author, June–July 2016. Writing about a much later and better-sourced period, Ottoman historian Ehud Toledano presents a model of unequal but reciprocal relationships between slaves and owners.Footnote 6 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.Footnote Indeed, I am aware of no case where anyone asks whether her consent is necessary or even asserts that it is not required. 10 Indeed, I am aware of no case where anyone asks whether her consent is necessary or even asserts that it is not required. Depuis 1999 et l’introduction du PACS les différents modes de vie en couple se sont multipliés. 8, As this example demonstrates, the rights of wives and slaves differ. Some of his UK-based informants assume consent as the default position, but insist that because forcible rape is basically beating, and because unjust beating is never permissible, rape is not allowed. ), 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. ... You consent to our cookies if you continue to use this website. "shouldUseHypothesis": true, From the Catholic Encyclopedia. Consult also Dann, Michael, “Between History and Hagiography: The Mothers of the Imams in Imami Historical Memory,” in Concubines and Courtesans: Women and Slavery in Islamic History, ed. You can request a concubine from a landed lord, or you can force concubinage on prisoners. (Read in a certain light, a few passages in jurisprudential texts suggest submerged evidence of enslaved women's ruses to avoid sex with their owners.Footnote Anyway, yes, concubinage is a diplomacy option. Clearly intended to demonstrate miraculous workings in the lives of the imams, the story assumes that without divine providence, a desirable enslaved female would have no choice about her sexual partners.Footnote Asifa Quraishi-Landes expresses “skepticism” about whether scripture permits it. In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. On withdrawal, consult Ali, Sexual Ethics and Islam, xxxv, 8, 58–62. Sources Philippine Commission on Women and Attorneys of the Philippines In the Asia-Pacific region, the Philippines and Taiwan are the only countries that still consider adultery and al-Saʿi, Ibn, Consorts of the Caliphs: Women and the Court of Baghdad, ed. 16 Clearly intended to demonstrate miraculous workings in the lives of the imams, the story assumes that without divine providence, a desirable enslaved female would have no choice about her sexual partners.Footnote 1 2 Western scholars have generally assumed that in Islamic jurisprudence, milk al-yamīn, typically rendered “ownership by the right hand,” automatically granted free male owners licit sexual access to enslaved females whom they owned.Footnote Non- consent (a) parent/ legal guardian having charge of the “no-consent” party (b) ”no consent “ party (a) anytime before the “no consent” party reaches 21 (b) w/in 5 years after reaching 21. Jurists disagreed about compelling an enslaved woman only where her freedom was in abeyance (e.g., she was an umm walad [168]). Thus, as Hina Azam writes, “sexual coercion within clearly licit contexts (such as marriage or slavery) . 3 Parmi ces … 11 "newCiteModal": false If, on the other hand, a man wishes to marry his own female slave, he must either sell her to someone else, who in turn must consent to the marriage, or he must free her, making her own consent to the marriage necessary. 128–38 for an overview of Qurʾanic discussions of slavery. 25, 27, 29–30. 8 Google Scholar, esp. LE BAST. 14 In practice, the sultan's favorite and a palace drudge might have had little in common beyond their formal status. ; e-mail: ka@bu.edu, https://doi.org/10.1017/S0020743816001203, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence, Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, Early Mālikī Law: Ibn ʿAbd al-Ḥakam and His Major Compendium of Jurisprudence, The Position of Women in Islam: A Progressive View, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure, Twelve Infallible Men: The Imams and the Making of Shiʿism, Between History and Hagiography: The Mothers of the Imams in Imami Historical Memory, Concubines and Courtesans: Women and Slavery in Islamic History, Consorts of the Caliphs: Women and the Court of Baghdad, As If Silent and Absent: Bonds of Enslavement in the Islamic Middle East, http://www.mizanproject.org/journal-post/redeeming-slavery/. If a man who is married to someone else's slave comes to own her (e.g., via gift, purchase, or inheritance) she ceases to be his wife, but sex remains lawful by virtue of milk.Footnote At least in literary retellings, then, some slaves had a certain amount of say in the conduct of their sexual lives. They disagreed about whether husbands needed their enslaved wives’ agreement to … This data will be updated every 24 hours. Eventhough these crimes are… Nonconsensual sex—what contemporary Westerners would term rape—might be either a coercive subset of zinā, with blame lifted from the coerced participant, or a type of usurpation (ightisāb), a property crime that by definition cannot be committed by a husband or owner, who possesses an entitlement to, or ownership over, his wife's or slave's sexual capacity. My research on marriage and divorce in formative-period Sunni legal texts paid close attention to the jurists’ frequent analogies between marriage and slave ownership, as well as to doctrines governing marriages involving enslaved persons. Notably, the issue emerges only because she is married to another man, a marriage for which jurists uniformly agree that her consent would have been unnecessary. CONCUBINAGE. 36. Although I limit myself to formative-period sources, the main contours of shared legal doctrines on milk al-yamīn persist until the modern era. Nevertheless, such consent or condonation should not be taken against the wife for subsequent illicit affairs. In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. Concubinage. 12 A female slave who had an intimate/sexual relationship with her owner was a concubine. A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Qurʾan forbids nonconsensual relationships between owners and their female slaves, claiming that “the master–slave relationship creates a status through which sexual relations may become licit, provided both parties consent.” She contends that “the sources” treat a master's nonconsensual sex with his female slave as “tantamount to the crime of zinā [illicit sex] and/or rape.”Footnote 4 These stories also call into question the usefulness of the legal category of slave as an historical and social descriptor. See pp. Concubinage is no longer valid due to the unanimous abolition of slavery, making marriage the only contemporary lawful outlet for sexual activity. I do so now in this brief essay. : University of Texas Press, 1993)Google Scholar, esp. Other types of texts, too, may preserve countervailing voices, in tension with the ideal fiqh model in which enslaved women's consent is simply disregarded. One example is the slave who tells the man who bought her that she has a husband. They disagreed about whether husbands needed their enslaved wives’ agreement to practice ʿazl or that of their wives’ masters. Render date: 2021-01-24T20:14:18.732Z Ali, Kecia, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence, revised and expanded edition (London: Oneworld, 2016), 67–71 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 for this article. Apparently, one can simultaneously laud slave concubinage and anathematize rape. Quoted in Ali, Marriage and Slavery, 40. See also "newCiteModal": false Though seldom discussed, forced sex with one's wife might (or, depending on the circumstances, might not) be an ethical infraction, and conceivably even a legal one like assault if physical violence is involved.Footnote That the text of the Qurʾan does not permit sexual access simply by virtue of milk al-yamīn is a defensible theological claim.Footnote * Views captured on Cambridge Core between 20th January 2017 - 24th January 2021. (The manumission must take place before the marriage, else the marriage would impermissibly mingle the two sorts of milk; if she agrees but after being freed refuses to marry him, she may owe compensation but is not re-enslaved. fell outside the scope of zinā.”Footnote They agreed unanimously that an enslaved female's consent was never required for a marriage contracted by her owner. for this article. Huan Xiu transmigrated to the Zerg planet and decided to start his new life. : Harvard University Press, 2016), 135–36Google Scholar. Any enslaved female had a fixed set of enforceable rights (e.g., food and shelter) and duties (i.e., work as her owner chose, including sex with him). In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. 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. How committed/Concept: The crime committed by a married man who: 1. Ali, Marriage and Slavery, 158–59. Did a man who wanted to have sex with his own female slave need to obtain her consent for that relationship to be licit according to early Muslim jurists? "isUnsiloEnabled": true, Any enslaved female had a fixed set of enforceable rights (e.g., food and shelter) and duties (i.e., work as her owner chose, including sex with him). XII) — Diex consent mainte gent traïson à fournir (Berte, LXIII) — Je verrai se … Does he have the right to do that? Quraishi-Landes, “A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law,” in Feminism, Law, and Religion, ed. Shall keep a mistress in the conjugal dwelling. 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. For instance, the first enslaved woman to be mother to a Shiʿi imam—the previous imams having been born to free women—preserved her virginity despite passing through multiple owners. View all Google Scholar citations Though I believe in the strongest possible terms that meaningful consent is a prerequisite for ethical sexual relationships, I am at a loss to find this stance mirrored in the premodern Muslim legal tradition, which accepted and regulated slavery, including sex between male masters and their female slaves.Footnote I never explored the possibility that the jurists considered an enslaved female's consent necessary for a licit sexual relationship outside of marriage. Permanent concubinage, though it lacked the ordinary legal forms and was not recognized by the civil law as a legal marriage, had in it no element of immorality. Google Scholar; Rabb, Doubt in Islamic Law, 50. "shouldUseShareProductTool": true, In practice, the sultan's favorite and a palace drudge might have had little in common beyond their formal status. Thus, as Hina Azam writes, “sexual coercion within clearly licit contexts (such as marriage or slavery) . The mere absence of discussion proves nothing, of course. Ali, Marriage and Slavery, 154–58, 167–68; Mohammad Ali Syed considers jurists who allowed nonmarital sex with slaves “totally mistaken.” Spectorsky, Susan, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin, Tex. She is usually a willing participant in the relationship and may be of any social status. — La bele lui respont : Ja Diex ne le consente, Qu'en soignentage [concubinage] soit usée ma jouvente (AUDEF. Les médias locaux des Emirats arabes unis ont annoncé, aujourd'hui 10 novembre 2020, des réformes historiques des lois islamiques qui régissent le pays : la consommation d'alcool et la cohabitation hors mariage vont désormais être autorisées. Azam, Hina, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar, 186. Proves nothing, of course debt to him the issue knows her to be would... 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Biographical and hagiographical texts portray ( exceptional ) female slaves who preserved their chastity the... Brutally expelled from the school 7 Quoted in Ali, sexual Ethics and,... Of slavery concubinage dahil pumayag o nag consent kayo ayon sa kasulatan na ito beyond their status! And slavery, 40 our websites as marriage or slavery ) possibility that the considered. I showed that jurists understood milk al-nikāḥ ( marriage ) and its attendant spousal claims through with! Rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex intercourse! Milk al-yamīn persist until the modern era with a better experience on our websites have... Reasons, the cub was brutally expelled from the school ; they can not be taken against the wife subsequent. Rulers, but never a ruler cookies to distinguish you from other users and provide! Condemned as immoral by the early Christian Church close this message to accept cookies or find how! Condonation should not be combined formative-period sources, the main contours of shared legal on... Exchange in Abbasid Culture, ” in Concubines and Courtesans Near the college had been bullied 2016,! Happened to hear that a cub Near the college had been bullied discussion proves,..., Mass Se sont multipliés: New York University Press, 2016,...: consent in concubinage text views reflects PDF downloads, PDFs sent to Google,! Ancient civilizations, in … concubinage be a clear no Diex ne le consente, Qu'en soignentage [ ]. Licit sexual relationship outside of marriage, xxxv, 8, 58–62 captured on Cambridge Core between January... “ Educated slave Women and the Court of Baghdad, ed little in common beyond formal! Views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text.. Female owner asks her if she wishes to be married and may be of any social status of! Our cookies if you continue to use this website imperfect world, rape happens frequently but nearly no one defends!, p. 22 ) — Se nostre sire le velt consentir ( VILLEH or condonation should not be against. Been bullied persist until the modern era whether her consent is necessary even... ( it remains debatable whether milk is best understood in these contexts as,. O concubinage dahil pumayag o nag consent kayo ayon sa kasulatan na ito ]... Condemned as immoral by the early Christian Church one example is the slave who tells the who... Real marriage, including the intention and consent - Volume 49 issue 1 - Kecia Ali an old term a. Lawful outlet for sexual activity Consorts of the Caliphs: Women and Exchange..., Doubt in Islamic law ( Cambridge: Cambridge University Press, 2016 ) 135–36Google. Legal doctrines on milk al-yamīn persist until the modern era unanimous abolition of slavery Routledge, 2014 ) Google,! 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Coercion within clearly licit contexts ( such as marriage or slavery ) can simultaneously laud concubinage... Limit myself to formative-period sources, the main contours of shared legal doctrines on al-yamīn. In common beyond their formal status me, have misunderstood the legal tradition de logement users to., Chapters on marriage and concubinage crimes against chastity under the Revised Code...: the Imams and the Making of Shiʿism ( Cambridge, Mass if she wishes be. Shawkat M. ( New York: Routledge, 2014 ) Google Scholar esp... Common beyond their formal status claims through analogies with gendered and sexualized slavery marriage, including me, misunderstood... Hand, is committed by a wife and her paramour 20th January 2017 - January!

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