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Locating Slavery in Middle Eastern and Islamic History
In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. So pervasive is deference to some notion of consent that even Da'ish supporters who uphold the permissibility of enslaving women captured in war can insist that their refusal or resistance makes sex unlawful.1Apparently, one can simultaneously laud slave concubinage and anathematize rape. A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Qur,an 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 zina [illicit sex] and/or rape."2Though 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.3
Western scholars have generally assumed that in Islamic jurisprudence, milk al-yamin, typically rendered "ownership by the right hand," automatically granted free male owners licit sexual access to enslaved females whom they owned.4My 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. I showed that jurists understood milk al-nikah (marriage) and its attendant spousal claims through analogies with gendered and sexualized slavery. I never explored the possibility that the jurists considered an enslaved female's consent necessary for a licit sexual relationship outside of marriage. I do so now in this brief essay. Although I limit myself to formative-period sources, the main contours of shared legal doctrines on milk al-yamin persist until the modern era.
Notably, Qur,anic passages on slavery differ strikingly in terms of their terminology and main preoccupations from later jurisprudential texts.5That the text of the Qur,an does not permit sexual access simply by...