When we study the laws of concubinage (slavery) in Islam through the scales of human rights and ethics, a grave contradiction emerges that raises numerous questions regarding the claims of "Divine Justice."
1. Intercourse with a Slave Mother and Her Daughter
It is narrated from Umar ibn al-Khattab in Muwatta Imam Malik (Hadith 1127):
Umar ibn al-Khattab was asked about a woman and her daughter who were both owned by the same person, "Can I have intercourse with one after the other?" Umar said, "I would not like to have them both together."
(This implies that while simultaneous intercourse with both is disliked/makruh, having intercourse with them separately is permissible.)
And in Muwatta Imam Malik (Book of Marriage):
Malik said: If a man commits zina with a woman and the hadd is carried out on him for it, he can marry her daughter if he wishes, and his son can marry the woman if he wishes. This is because he approached her in a haraam way, and the prohibitions Allah established are based on halaal intercourse or what resembles marriage. (Muwatta Malik, Book of Marriage, Chapter: What is Prohibited of Women)
The bitter facts that emerge are as follows:
- If marrying the mother or daughter of a free woman is "eternally prohibited" and a great sin, why is it "permissible" or merely "disliked" in the case of a slave? Does a slave mother not count as a mother, or does her daughter not have feelings?
- Does justice not demand that the sanctity of "prohibited relations" (mahram) be based on humanity, rather than on whether a woman is free or enslaved? Here, religion provides a list of prohibitions on one hand, but through "Milk al-Yamin" (ownership), it creates a loophole where a single man can sexually exploit both a woman and her daughter.
- Lack of Consent: The greatest tragedy is that the consent of the slave is entirely absent in this process. She is treated like an "object" or "property" at the mercy of the owner.
This contradiction makes it clear that these laws were not formulated for universal justice, but to protect the specific social structure and "ownership rights" of that time, where the status of an enslaved woman was nothing more than a sexual product.
2. Marriage with a Daughter Born of Adultery (Zina)
In Imam al-Shafi'i's Kitab al-Umm, it is stated:
"And I dislike out of piety (wara') for a man to marry the daughters he fathered through zina, but if he does marry her, I would not annul it." (Meaning the marriage would be valid.)
This is the Shafi'i view: that a legal lineage is not established from offspring born of zina; therefore, marriage with a daughter who is the product of such an act is permissible. However, the other Imams (Hanafi, Maliki, Hanbali) declare it haraam.
A famous principle of Muslim jurisprudence is that "The disagreement among the Imams is a mercy for the Ummah." However, when we look at this fatwa of Imam al-Shafi'i (which permits marriage with a biological daughter born of zina), this "mercy" turns into a horrific moral tragedy.
- In the legal framework of Islam, the principle is established that where the Imams disagree, the "Hadd" (punishment) is dropped. This means that if someone follows the Shafi'i school and marries his own biological daughter, the followers of the other three Imams (who consider it haraam) cannot punish him because it becomes an "issue of ijtihad."
- This system provides an opportunity for a criminal-minded individual to choose from the four Imams the one who offers the most leniency to satisfy his sexual lust. If a marriage between father and daughter is "correct" according to one Imam, he can use that school as a shield to escape the laws of the state.
The most significant critique is that if these laws were truly revealed by an Omnipotent and All-Knowing God, why are they so ambiguous that there is no consensus even on such a sensitive and counter-natural matter as "marrying one's own daughter"?
- To say "this is a juristic difference and there is no sin in it" is an insult to the human conscience. If one Imam says it is permissible and another says it is haraam, it means Islam lacks a permanent and immutable definition of "humanity" and "relationships." Everything depends on legal loopholes.
- If marrying a daughter born of zina was such a loathsome act, why did the Quran remain silent on it? Why was it not explicitly declared "haraam" so that an eminent scholar like Imam al-Shafi'i would not have the audacity to call it "halaal"?
These "disagreements of ijtihad" actually provide the entire structure of Islam with an elasticity where ethics become secondary and the "legal seal" becomes primary.
On one hand, it is claimed that Islam is the religion of nature (fitrah), but on the other hand, its greatest commentators (jurists) provide opinions that jolt human nature to its core. When loopholes exist in jurisprudence for matters like "father-daughter marriage" and "sexual exploitation of mother and daughter" (in the case of slaves), it proves that this system stands on male supremacy and legal cunning rather than Divine Justice.
Conclusion: Simply saying "this is only the opinion of one Imam" cannot save Islam from this critique. As long as this opinion remains a part of "Islamic Jurisprudence" and the one who acts upon it is not declared a "disbeliever" or a "criminal," this stain will remain on the entire system. This "disagreement of the Ummah" is not a mercy; it is a funeral for human rights and the sanctity of blood relations.
P.S.
Islamic Paternity Law states that a child born of zina has no legal relationship with their father; they receive neither the father's name, nor inheritance, nor is the father their legal guardian.
- What kind of "Divine Justice" is it that the man and woman commit the crime, but the punishment is given to the innocent child who is deprived of their natural rights (the father's identity and protection)? Here, religion sacrificed an individual's entire life and social identity just to prove the "loathsomeness of zina."
When Islam says "this child does not belong to this father" (legally), Imam al-Shafi'i simply took that premise to its logical conclusion. His reasoning was:
If this boy or girl is not the offspring of this man such that inheritance can be given or lineage proven, then this man is a "stranger" to them. And if he is a stranger, then marriage with a stranger cannot be haraam.
There is no "mistake" by Imam al-Shafi'i here; rather, he remained strictly loyal to the Islamic principle that considers "marriage" (nikah) as the basis for all relationships, not the "biological connection." He merely exposed the hidden truth: that in Islam, the basis of relationships is not nature, but merely a "legal contract."
Although the Hanafi, Maliki, and Hanbali Imams consider this fatwa of Imam al-Shafi'i loathsome and declare it haraam, they lack any permanent Islamic evidence for it.
- On one hand, they accept the Islamic principle that "the child is not for the adulterer" (meaning the child will not be attributed to the father). But on the other hand, solely in the matter of marriage, they begin to invoke "nature" and "biological relations."
- This might be a "moral compulsion" for these Imams to call father-daughter marriage haraam, but in the field of "Islamic evidence," they lose to Imam al-Shafi'i. If the relationship has been severed due to zina, it must be severed everywhere. You cannot arbitrarily declare it "broken" in one place and "connected" in another.
Hassan Radwan