By Haroon Bashir
Slavery has been a near-universal institution throughout human history, and its formal abolition is a relatively recent development.[1] Like all scholars, Muslim jurists were shaped by their historical context—a world in which the slave trade was normalized.[2] Consequently, references to enslavement and emancipation appear throughout classical legal manuals. This raises an important question: how did jurists conceptualize slavery, and, more specifically, freedom, within their legal frameworks?
Across classical legal discussions on slavery, there is a striking pattern in which freedom is given priority over enslavement, even when this position contradicts established legal principles. I refer to this phenomenon as the “emancipatory ethic.”[3] It is important to note that these discussions did not amount to the rejection or denunciation of slavery as an institution. Nevertheless, there clearly exists a jurisprudential tendency to treat freedom as irrevocable and, in moments of tension, worthy of preference over competing doctrinal concerns. Taken together, these rulings provide insight into how classical-era Muslim jurists navigated the relationship between servitude and liberty and the extent to which freedom occupied a more elevated position than is often assumed.
One example of this emancipatory ethic can be seen with the case of “blasphemous emancipation,” that is, an instance in which a master emancipates his slave in the name of “Satan or idols.”[4] According to the Ḥanafī school, such a statement, while completely illegitimate in its sentiment, still constitutes a legitimate, legally binding manumission.
As Qudūrī (d. 428/1037) states, “Whoever sets his slave free in the name of God or Satan or for an idol, the slave is considered free.”[5] In his commentary on the Mukhtaṣar of al-Qudūrī, Maydānī (d. 1298/1881) adds
Whoever sets his slave free in the name of God or for Satan or for an idol, [the slave] is set free. Since the ordinance of manumission was issued by the master and thereby extends to the slave, the emancipation occurs. His statement thereafter is nonsensical and sinful, as he seeks to venerate disbelief.[6]
The ruling may appear counterintuitive considering that shirk (idolatry) is usually described as an unforgivable transgression within Islamic thought. Nevertheless, Qudūrī maintains the legitimacy of the statement, emphasizing that the manumission would take precedence over the speaker’s polytheistic sentiment. Maydānī’s commentary corroborates this position, adding that the veneration of disbelief is “nonsensical and sinful,” while affirming that the manumission remains legitimate. This line of argumentation appears as a common thread across numerous rulings; once emancipation occurred, irrespective of its form, it could not be revoked.
For example, the Ḥanafī jurist Sarakhsī (d. 483/1090) discusses a ruling in which there is a dispute between a mukātab (an enslaved person who has contracted for his freedom) and his master.[7] The dispute explores an instance in which the mukātab claimed his freedom contract was worth one thousand dirhams, and the master claimed the contract is worth two thousand dirhams. Surprisingly, the ruling states that “the judge should rule on the claim of the mukātab so long as he takes an oath and establish the contract at one thousand dirhams.”[8] The fact that the slave’s word would be held in higher regard than his masters’ claim is fascinating. However, this perhaps has little to do with the potential integrity of the claim of the enslaved. Rather, in the minds of jurists, the lower amount (one thousand dirhams) hastens the completion of the kitāba (manumission) contract with more immediacy which prioritizes freedom as an objective over other proprietary claims. Furthermore, Sarakhsī clarifies that if the master can bring indisputable evidence that the contract was in fact two thousand dirhams, the judge must accept he has made a mistake in emancipating the slave at the lower value.
Nevertheless, though the court has mistakenly emancipated the enslaved person, the act cannot be undone—as once they are emancipated, it is illegal to enslave a free person. Once again, the ruling demonstrates that emancipation, once granted, was irrevocable, and freedom retains precedence over procedural exactitude and legal rectification. For jurists, whose entire intellectual (and moral) enterprise revolved around evidential accuracy and technical precision, the willingness to overlook legal formalism in order to elevate freedom is particularly noteworthy.
While Sarakhsī’s ruling highlights the prioritization of manumission over procedural exactitude, the Ḥanbalī jurist Ibn Qudāma (d. 620/1223) explores a related phenomenon in the realm of conditional contracts, where legal logic itself bends to ensure freedom. Ibn Qudāma discusses a doctrinally paradoxical conditional contract. He narrates a ruling that states, “If [the master] says to his slave, ‘You are free if I sell you,’ then he proceeds to sell him, the slave becomes free.”[9] Jurists maintain that the seller cannot govern over that which he does not own. Therefore, once the sale has been completed, the previous owner has no adjudication over the sold item.[10] As such, once the slave is sold, the master is in no position to free him and has no power over him, as he is no longer his property. Therefore, the ruling outlines a conditional manumission in which the law permits the fulfilment of a condition that effectively dissolves the legal foundation of the transaction itself.
Ibn Qudāma contends that this is a logical and coherent position: as a principle, a seller cannot dictate what happens to something after its sale, as it ceases to belong to him. Nevertheless, he concludes that while the criticism of this ruling is consistent, the slave should be freed because “it is incumbent that freedom is given preference (yajibu taghlīb al-ḥurriyya).”[11] In this instance, the master continues to govern over something that is not his property —an outcome that would not hold true in other circumstances. Ibn Qudāma is willing to tolerate contractual irregularity if the outcome results in emancipation, even where such reasoning contradicts conventional logic in Islamic law.
In another discussion on slavery and freedom, Ibn Qudāma explores a unique case of the umm al-walad—a female slave who had given birth to the child of her master. While the child would be born free, jurists legislated that the umm al-walad would only be granted freedom upon the death of her master.[12] This arrangement necessitated the need to legislate for the eventuality that an umm al-walad may take matters into her own hands and murder her master. In such an instance, Ibn Qudāma surprisingly argues that the umm al-walad would be considered free if such an event occurred, as there was general agreement amongst the schools that
If the umm al-walad murders her master, she is emancipated, as it is not possible to transfer her ownership to another, and the ownership of her current master has ceased through his death. She therefore becomes a freewoman, as would have been the case if he had been murdered by another, and she must pay the price of her [freedom]. It is not obligatory that she should face retribution.[13]
The fact that she should be considered free was accepted by the Shāfiʿī school with the proposed caveat that she was liable for blood money in order to become a freewoman.[14] Shāfiʿīs justifies this position on the grounds that “it is obligatory for a free person who murders a free person to pay blood money.”[15] However, the Ḥanafī and Ḥanbalī schools maintain that when the crime occurred, she was not free but rather in a state of servitude as an umm al-walad. Therefore she cannot be judged as a free person, and she is not obligated to pay more than the price of her freedom (fa-lam yajib bi-hā akthar min qīmatihā).[16] As with previous rulings, the law flexes its usual ramparts to allow the realization of emancipatory ends. Jurists deliberately subordinate the punishment for a crime as serious as homicide is to allow for the normative imperative of freedom.
Perhaps the most interesting case to highlight the emancipatory ethos in classical Islamic law can be seen with a paternity dispute between an enslaved Muslim couple and a free non-Muslim couple. It was claimed that if a free non-believer and an enslaved Muslim laid claim to a child as their own, it was preferable to allocate the child to the free non-believer. Sarakhsī narrates that
If an enslaved Muslim claims paternity of a child from relations with a female slave, and a free non-believer claims paternity of the child from relations with his [free] wife, the ruling is enacted in favour of the free non-believer. In [the non-believer’s] statement there is an affirmation of freedom for the child, and this contains immediate benefit [for the child]. The child may not obtain emancipation as they grow, but perhaps Allah will guide them and they will become Muslim on their own accord. The consideration of the [child’s] freedom is given the utmost priority in regard to his rights.[17]
The ruling highlights the extent to which jurists were willing to stretch the “emancipatory ethic,” to the point in which adherence to the religion of Islam could be sacrificed in the pursuit of freedom.
What emerges from the cited cases is not simply the familiar claim that manumission was encouraged within Islamic law. Moreover, they demonstrate a pattern in which jurists gave preference to freedom as a principle over competing legal logics, whether theological coherence, evidentiary hierarchy or contractual consistency.
Of course, I do not claim that this pattern in any way anticipated the abolition of slavery. On the contrary, slavery remained lawful and regulated. Nevertheless, across legal schools, jurists explicitly gave preference to freedom over a number of different legal rulings, resulting in a discernible jurisprudential tendency to privilege emancipation within the internal hierarchy of the law.
It was this aspect of Islamic law that abolitionist scholars would later emphasise and amplify.[18] Building upon these precedents, scholars advanced the argument that abolition was not a foreign imposition; rather, it was a manifestation and extension of emancipatory inclinations embedded within Islamic law. I explore these arguments in more detail in my next essay.
Notes:
[1] Keith Bradley and Paul Cartledge, “Introduction,” in The Cambridge World History of Slavery: Volume 1, ed. Keith Bradley and Paul Cartledge (Cambridge University Press, 2011), ix.
[2] Haroon Bashir, Slavery, Abolition and Islam: Debating Freedom in the Islamic Tradition (Oxford University Press, 2025), 21–46.
[3] Bashir, Slavery, Abolition and Islam, 80–90.
[4] Aḥmad b. Muḥammad al-Qudūrī, The Mukhtaṣar of al-Qudūrī: A Manual of Islamic Law According to the Ḥanafī School, trans. Tahir Mahmood Kiani (TaHa Publishers, 2010) 479.
[5] al-Qudūrī, Mukhtaṣar, 479.
[6] Abd al-Ghanī al-Ghunaymī al-Maydānī, al-Lubāb fī sharḥ al-kitāb, (al-Maktaba al- ʿIlmiyya, 1980), 3:117.
[7] A mukātab is an enslaved person who has entered into a contract and will be granted manumission upon the payment of an agreed sum.
[8] Muḥammad b. Aḥmad b. Abū Bakr al-Sarakhsī, al-Mabsūṭ, (Dar al-Kutub al- ʿIlmiyah, 2001), 8:66.
[9] Muwaffaq al-Dīn Abū Muḥammad ʿAbd Allāh b. Aḥmad Ibn Qudāma, al-Mughnī, (Dar Alam al-Kutub, 1997), 6:27.
[10] Ibn Qudāma, Mughnī, 6:27.
[11] Ibn Qudāma, Mughnī, 6:27.
[12] Bashir, Slavery, Abolition and Islam, 74–75.
[13] Ibn Qudāma, Mughnī, 14:607.
[14] Ibn Qudāma, Mughnī, 14:608.
[15] Ibn Qudāma, Mughnī, 14:608.
[16] Ibn Qudāma, Mughnī, 14: 608.
[17] al-Sarakhsī, Mabsūt, 17: 99–100.
[18] See Chapters 4 and 5 on “Islamic Abolitionism” in Bashir, Slavery, Abolition and Islam, 101–46.
Suggested Bluebook citation: Haroon Bashir, The Emancipatory Ethic? Freedom in Classical Islamic Law, Islamic L. Blog (May 7, 2026), https://islamiclaw.blog/2026/05/07/the-emancipatory-ethic-freedom-in-classical-islamic-law/.
Suggested Chicago citation: Haroon Bashir, “The Emancipatory Ethic? Freedom in Classical Islamic Law,” Islamic Law Blog, May 7, 2026, https://islamiclaw.blog/2026/05/07/the-emancipatory-ethic-freedom-in-classical-islamic-law/.
