By Professor Bernard Freamon

Slavery and slave trading are both universally abolished, statutorily and very often constitutionally, in all the world’s jurisdictions. The juridical reach of these abolitions is quite thorough and far-reaching. Indeed, very few people in the world can now claim that they are unaware of the anti-slavery norm in human relations. This world-wide secular and normative state of affairs is reflective of a juristic consensus that is clearly expressed in customary international law principles, the provisions of all major international agreements, conventions, and treaties touching on the subject, and in general principles of international law, particularly the jus cogens peremptory norms.^[1] These provisions all unequivocally declare slavery and slavery-related practices to be unlawful and severely punishable as international crimes and strictly remediable as civil wrongs.^[2] They condemn any effort to justify slavery and slavery-related practices, including slave trading and trafficking, in any and all circumstances, including war or national emergency.^[3] Scholars, government officials, diplomats, journalists, and many others were therefore shocked to see that partisans of ISIS, Boko Haram, and, later, Abu Sayyaf, actively employed purported Islamic ideology permitting the enslavement of captives and prisoners of war based on interpretations of core Islamic texts and opinions of medieval and early modern Islamic jurists.

The attempted revival of de jure slavery and slave trading by these insurgencies should not have surprised knowledgeable observers.^[4] In point of fact, the Sharīʿa, the theocentric communitarian system of law and ethics governing the behavior of observant Muslims, has not effectuated a mechanism for accomplishing the abolition of slavery. This is significant because many governments and legal regimes in the Muslim world have been, and continue to be, profoundly influenced by Sharīʿa norms and principles. Such influence is due, in part, to religious, cultural, and historical factors, but it also occurs because the Sharīʿa very often offers sound and rational solutions to jurisprudential problems. Further, many observant Muslims order their lives, their family circumstances, and their other relationships in accordance with Sharīʿa norms and principles. The insurgencies I have mentioned, following a jihadi-salafist interpretation of the texts, argue that Islamic textual sources allow the enslavement of war captives taken as prisoners in a jihad.^[5] They see their military struggle against their adversaries as a species of jihad, and they seek to use the enslavement of prisoners, both combatants and innocents, as a tool of military strategy and conquest.^[6] These insurgencies have also used their penchant for the enslavement of war captives, particularly young female captives, as a recruiting tool, seeking to attract young men, and as an instrument of terror that seeks to advance their military aims and objectives and accomplish the subjugation of conquered populations.^[7]

The issue of the abolition of slavery in Islamic law is thus a matter of some urgency for observant Muslims, for governments that look to the Sharīʿa for guidance in the formulation of their juridical policies and legal norms, and for scholars and practitioners of Islamic law, scholars and practitioners of the law of war, anti-slavery activists, and proponents of a universalization of the principles of international humanitarian law. I have argued elsewhere that the secular imposition of the abolition of slavery has been a serious failure in many parts of the Muslim world, creating what I have called an illusion of abolition, and that, in addition to the revival of ancient practices by the aforementioned insurgencies, there are many other contemporary practices in the Muslim world that are, in fact, variations on the practices of slavery and slave trading historically permitted under the Sharīʿa over the past 1400 years.^[8] It is therefore extremely important to explore whether there could be an abolition of slavery and slave trading under the aegis of Islamic law. This piece offers a very preliminary look at the issue.

Islamic jurisprudence recognizes two primary and two secondary sources of law. The primary sources are the Qur’ān, believed by Muslims to be the speech of God revealed to the Prophet Muhammad between 610 CE and 632 CE, and the Sunnah, the divinely inspired doings, sayings and tacit approvals of the Prophet Muhammad during the time of his prophetic mission.^[9] The secondary sources, to be employed when the Qur’ān and Sunnah do not offer a definitive answer or are silent, are the doctrine of ijmāʿ, or consensus (generally of Muslim jurists), and qiyās, the employment of juristic reasoning by analogy to known sources when new problems are encountered.^[10] One can certainly see how the abolition of slavery would be a difficult jurisprudential problem for Islamic law, as the Qur’ān and Sunnah both accepted slavery as a 7^th century fact of life, while imposing largely humanitarian regulations on its practice. Neither source explicitly suggests that there might be, or should be, abolition. On the other hand, as I have noted, world-wide attitudes toward slavery and slave trading have undergone a sea change in recent times. Efforts by insurgencies to revive these practices, using jihadi-salafist interpretations of the texts, therefore makes the issue a critical one for observant Muslims, scholars of Islamic law, and interested non-Muslims.

There are at least four approaches that might lead to abolition.^[11] The first approach concludes that any legal or moral regime permitting slavery is inconsistent with true monotheism. To my knowledge, no caliph or sultan or other head of state or law-making body in the history of Muslim communities has ever taken this position, although a number of prominent twentieth century jurists and theologians, including Sayyid Qutb, Ayatullah Murtaza Mutahhari, and Muhammad Baqir al-Sadr, have subscribed to the argument. Juristic commentary supporting this position centers around interpretations of 3:64 in the Qur’ān, which condemns the erections of “lords and patrons other than Allah.”^[12] These interpretations are certainly sound, but they are contradicted by other Islamic plain texts that seem to explicitly allow slavery.^[13] Jurists have not resolved this contradiction. The second approach argues that there is a consensus of Islamic scholarly opinion, referred to above as an ijmāʿ, concluding that slavery and slave trading are practices that are now forbidden (harām) by the jurisprudence. The doctrine of ijmāʿ permits recognition of a rule of law only if it is based on the unanimous consensus of Muslim jurists.^[14] There may be a strong argument that such a consensus on the unlawfulness of slavery in fact now exists, as evidenced by the recent “Letter to Baghdadi,” a letter directed to the late Abu Bakr al-Baghdadi, then head of ISIS, and his followers, and signed by at least 126 prominent Muslim jurists and opinion-makers, asserting, inter alia, that the reintroduction of slavery is forbidden in Islam as it is now prohibited by universal consensus.^[15] It appears there is a very small minority of jihadi-salafi jurists who disagree with this position and their status on the question, as well as the logistics of ascertaining the existence of a true consensus, remains to be debated. I argue here that anti-slavery jurists ought to vigorously engage in debate with those who question their position and begin a process of public education that would eventually support development of such a consensus. Realization of a consensus on slavery may take some time, as ijmāʿ is generally a backward-looking phenomenon in the jurisprudence, but the debate is certainly worth the candle. The third approach applies the jurisprudential doctrine of maṣlaḥa (welfare or public interest) to all circumstances involving slavery and slave trading in the Muslim world, similarly concluding that such practices must be abolished because they are evils that undermine the public interest and welfare of the Muslim community. This approach holds great promise because it relies on a well-established interpretive device, recognized by both Sunni and Shi’a jurists, and there is historical precedent for its use. Application of maṣlaḥa by jurists would recognize as “effective history” the horrific and genocidal chronicle of slavery and slave trading by Muslims in the Indian Ocean, African, Eurasian and Mediterranean worlds.^[16] The last approach is an interpretive one that I have described as a species of prioritarianism, a legal philosophy with origins in a number of ancient texts seeking, as an intrinsic and non-egalitarian moral good, to improve the condition of those who are worse off in society.^[17] The jurisprudence recognizes that slaves are frequently among the worse off in society and there are a number of provisions of the Qur’ān and examples from the Sunnah declaring that the emancipation of slaves is one of the highest priorities of the Islamic religion. Application of a robust prioritarian interpretation of these texts would lead, therefore, to the conclusion that abolition is the best way to accomplish the emancipatory result demanded by the texts.

^[1] See Louis Henkin, Richard Crawford Pugh, Oscar Schacter, and Hans Smit, International Law: Cases and Materials, 3^rd ed. (West: St. Paul, 1993), 91-93 (citing, inter alia, R. St. J. Macdonald, Fundamental Norms in Contemporary International Law, 25 Can. Y.B. of Int’l Law 115, 131 (1987) (defining  jus cogens norms)).

^[2] See, e.g., International Convention with the Object of Securing the Abolition of Slavery and the Slave Trade, Sept. 25, 1926, 60 L.N.T.S. 253 (League of Nations 1926 Slavery Convention); Universal Declaration of Human Rights, Art. 4, G.A. Res. 217, U.N. GAOR, 3^rd Sess., U.N. Doc. A/810 (1948); Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Supplementary to the International Convention, Sept. 7, 1956, 266 U.N. T. S. 3; Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Nov. 15, 2000, 2237 U.N.T.S. 319, U.N. Doc. A/55/383  (Palermo Protocol).

^[3] M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes,” 59 AUT Law & Contemp. Probs. 63 (1996).

^[4] Some years ago, I suggested the possibility of such a revival in Bernard K. Freamon, Slavery, Freedom, and the Doctrine of Consensus in Islamic Jurisprudence, 11 Harv. Hum. Rts. J. 1 (1998).

[5] See, e.g.,The Revival of Slavery Before the Hour, 4 Dabiq 14, 17, https://clarionproject.org/docs/islamic-state-isis-magazine-Issue-4-the-failed-crusade.pdf. [Last accessed April 28, 2020] (2014 article in ISIS magazine asserting that “enslaving the families of the kuffar [infidels] and taking their women as concubines is a firmly established aspect of the Shariah…”).

[6] The literature in Western languages on the ideologies of ISIS, Boko Haram, and other jihadist groups is somewhat sensationalist but authors do generally faithfully report horrific accounts of victims of enslavement. A careful reading of this literature clearly reveals the presence of jihadist ideologies that feature enslavement of captives as one of their centerpieces. See, e.g., Jessica Stern and John M. Berger, ISIS: The State of Terror (2015); Mike Smith, Boko Haram: Inside Nigeria’s Unholy War (2015); Benjamin Hall, Inside ISIS: The Brutal Rise of a Terrorist Army (2015); Yuri Mantilla, ISIS’ Crimes against Humanity and the Assyrian People: Religious Totalitarianism and the Protection of Fundamental Human Rights, 23 ILSA J. Int’l & Comp. L. 77 (2016); Karima Bennoune, Acting Together to Stop Those Who are Killing Us: International Law and the Civil Society Struggle against Jihadist Terrorism, 109 Am. Soc’y Int’l  Proc. 143 (2015); Remarks by Anicée Van Engeland, 110 Am. Soc’y Int’l L. Pro. 225 (2016).

[7] Rukmini Calamachi, ISIS Enshrines a Theology of Rape, N.Y. Times (August 13, 2015), http://www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-of-rape.html. [Last accessed April 29, 2020]; See also The Revival of Slavery Before the Hour, supra note 5, at 15 (asserting that captured women are part of the “spoils of war” under Islamic law and can therefore be divided up among soldiers); Cf. Pallin Van Leuven, Dyan Mazurana and Rachel Gordon, Analysing the Recruitment and Use of Foreign Men and Women in ISIL through a Gender Perspective, in Foreign Fighters under International Law and Beyond (2016) (Francesca Capone, Christophe Paulussen, and Andrea De Guttry, eds.), 97-120.     

^[8] Bernard K. Freamon, Possessed by the Right Hand: The Problem of Slavery in Islamic Law and Muslim Cultures (Leiden: Brill, 2019), Chpt. 9. The practices I refer to, such as socially and juridically enforced concubinage, child marriages, servile adoptions and marriages, ethnic servitude schemes, and the use of boys in servile entertainment practices, are all analogous to practices referred to as “the badges and incidents of slavery” in American jurisprudence.  See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883); Jones v. Alfred H. Mayer & Co., 392 U.S. 409 (1968); Runyon v. McCrary, 427 U.S. 160 (1976).

[9] See generally Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2006) (3^rd rev. and enl. ed.), 16-116.

[10] Id. at 228-305. The Shi’a jurisprudence takes a different approach to the fourth source, describing it as ‘aql (rationality) but similarly emphasizing the use of human reasoning in grappling with new problems not contemplated by the Qur’ān or Sunnah. Both the Sunni and Shi’a bodies of jurisprudence permit interpretive strategies that allow creative solutions to problems and range across both the primary and secondary sources. Id. at 323-499.

^[11] We have to put aside, in the interest of space, extended discussion of what is meant when one says that a practice is “abolished.” Put simply, in the cases of slavery and slave trading it would mean that such practices, no matter what their provenance, are now outlawed and the “badges and incidents” of such practices would similarly be outlawed. Those who engage in such practices could not rely on the jurisprudence or ancient custom or social practice to justify their actions. Similarly, those who enforce Islamic jurisprudential norms would be duty-bound to condemn and, in appropriate cases, punish transgression of those norms.

^[12] Qur’ān 3:64.

[13] See, e.g., Qur’ān 4:25 (permitting impecunious Muslim men without means to marry free women to marry believing enslaved women among them). See also Qur’ān 9:60 (mandating provision of charity (alms) for the support and emancipation of slaves in society).

[14] See generally, Ahmad Hasan, The Doctrine of ijmāʿ in Islam (1976).

^[15] Open Letter to Dr. Ibrahim Awwad Al-Badri, Alias ‘Abu Bakr Al Baghdadi, and to the Fighters and Followers of the Self-Declared ‘Islamic State’ (2014), http://lettertobaghdadi.com/pdf/Booklet-English.pdf.

^[16] As I have noted, there are a number of historical examples of the use of maṣlaḥa to void or make illegal a practice that would otherwise be lawful. These include the declaration of the Caliph ‘Umar ibn al-Khattab prohibiting the use of Islamic punishment of amputation of limbs for theft in time of famine and the closing of the slave market and the abolition of slavery and slave trading by the Bey of Tunis in 1841. See Ismael Musah Montana, The Abolition of Slavery in Ottoman Tunisia (Gainesville: University of Florida Press, 2013), 84. The recent cancellation of the Hajj pilgrimage to Mecca, an ancient rite mandated by the Qur’ān for Muslims who are able, because of the coronavirus pandemic, is another very recent example. For an excellent general description of the doctrine of maṣlaḥa and its use by jurists in the past, see Felicitas Opwis, Maṣlaḥa and the purpose of the law: Islamic discourse on legal change from the 4^th/10^th to the 8^th/14^th century (Leiden; Boston: Brill, 2010).

^[17] See Freamon, Possessed by the Right Hand, at 140.

About the Author 

Professor Bernard Freamon recently achieved emeritus status at Seton Hall, where he continues to teach. He also teaches Islamic Jurisprudence at New York University School of Law and he offers a unique course on slavery and human trafficking, based in Zanzibar, Tanzania, for students in George Mason University’s Global Education Program. He has wide experience, having practiced law for over forty years, and he has lectured, consulted, and published in the areas of Islamic Jurisprudence, Islamic Legal History, Comparative Law, Evidence, Prisoner’s Rights, Slavery and the Law, Legal Education, and Professional Ethics, for almost as many years. His recently published book, Possessed by the Right Hand: The Problem of Slavery in Islamic Law and Muslim Cultures (Leiden: Brill, 2019), is the first comprehensive legal history of slavery in Islam ever offered to readers. Freamon has also served as co-editor, together with Robert Harms and David W. Blight, of an important collection of essays entitled Indian Ocean Slavery in the Age of Abolition, published by Yale University Press in 2013. In that same vein, he recently contributed an essay entitled “Slavery and Society in East Africa, Oman, and the Persian Gulf,” to a collection entitled What is a Slave Society? The Practice of Slavery in Global Perspective, edited by Noel Lenski and Catherine M. Cameron and published in 2018 by Cambridge University Press. Professor Freamon was the founding director of Seton Hall Law School’s Center for Social Justice, and has recently been elected to membership in the American Law Institute. He received his B.A. from Wesleyan University in 1970 and his J.D. from Rutgers University School of Law (Newark) in 1974. He also possesses LL.M. and J.S.D. degrees from Columbia University School of Law.