consent in concubinage

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 Spectorsky, Susan, Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh (Austin, Tex. In discussing withdrawal (ʿazl) as a method of contraception the jurists distinguish between consent (possibly) required from wives and that (never) required from enslaved concubines. Laiou, Angeliki E., ed., Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Washington, D.C.: Dumbarton Oaks, 1993)Google Scholar presents comparative examples. A slightly different example reinforces the legal distinction between marriage and concubinage. Syed, The Position of Women in Islam: A Progressive View (Albany, N.Y.: State University of New York Press, 2004), 33–36 Azam, Hina, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar, 186. That the text of the Qurʾan does not permit sexual access simply by virtue of milk al-yamīn is a defensible theological claim.Footnote Other than the elements of the offense and the applicable penalties, both adultery and concubinage are covered by basically the same set of rules and, therefore, would be discussed together. w/in 5 years after the celebration of the marriage The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts.Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. If they do reflect such stratagems, they further show that a slave's simple “no” would not suffice.) 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. Does he have the right to do that? 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. In practice, the sultan's favorite and a palace drudge might have had little in common beyond their formal status. Feature Flags: { It is even more of a stretch to accept that the need for consent within concubinage was so obviously a condition for its legitimacy that no one considered it necessary to say so, but that the absence of the need for a slave's consent to her marriage required explicit affirmation. Doubt in Islamic Law, 50n6. In practice, the sultan's favorite and a palace drudge might have had little in common beyond their formal status. Full text views reflects PDF downloads, PDFs sent to Google Drive, Dropbox and Kindle and HTML full text views. One example is the slave who tells the man who bought her that she has a husband. Azam, Hina, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar, 186. Philippines' law criminalizes adultery and concubinage. ADULTERY AND CONCUBINAGE Definition: What is concubinage? Toledano, Ehud, As If Silent and Absent: Bonds of Enslavement in the Islamic Middle East (New Haven, Conn.: Yale University Press, 2007)Google Scholar. "newCiteModal": false Notably, Qurʾanic passages on slavery differ strikingly in terms of their terminology and main preoccupations from later jurisprudential texts.Footnote See also Ali, Kecia, Sexual Ethics and Islam: Feminist Reflections on Qurʾan, Hadith, and Jurisprudence, revised and expanded edition (London: Oneworld, 2016), 67–71 3 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 8 1 Jocelyn Sharlet records a roughly similar story of resistance to sale or gift. 1 Google Scholar; and Ali, “Redeeming Slavery: The ‘Islamic State’ and the Quest for Islamic Morality,” Mizan: Journal of Interdisciplinary Approaches to Muslim Societies and Civilizations 1 (2016): accessed 6 October 2016, http://www.mizanproject.org/journal-post/redeeming-slavery/. 8, As this example demonstrates, the rights of wives and slaves differ. 1. The other possibility is that generations of scholars, including me, have misunderstood the legal tradition. They disagreed about whether husbands needed their enslaved wives’ agreement to … YATIN VARMA Rights and obligations in a marriage are contained in our French inspired 1808 Civil Code by virtue of which a concubin has no legal status in a relationship. Le certificat de concubinage est un document peu utilisé par les français, il comporte cependant certains avantages. She says no; her owner frees her on the spot.Footnote However, the “Lex Julia” was condemned as immoral by the early Christian Church. Historically, Muslims considered sex to be lawful in only two cases: marriage and concubinage. XII) — Diex consent mainte gent traïson à fournir (Berte, LXIII) — Je verrai se … ), 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. "shouldUseShareProductTool": true, He happened to hear that a cub near the college had been bullied. The mere absence of discussion proves nothing, of course. A slightly different example reinforces the legal distinction between marriage and concubinage. 3. Wilsons The Bird King blends fantasy, historical romance, magical realism, adventure, and the court tale in a story about the favored concubine of the last sultan of Granada, a mapmaker with world-shaping artistic abilities, and a werewolf/vampire jinn in the final days of Moorish Spain and the rise of … (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. A handful of intriguing accounts in biographical and hagiographical texts portray (exceptional) female slaves who preserved their chastity. All accepted—sometimes tacitly, sometimes explicitly—that a man could practice withdrawal with his own female slave without seeking her permission.Footnote 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. 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 8, As this example demonstrates, the rights of wives and slaves differ. This data will be updated every 24 hours. * Views captured on Cambridge Core between 20th January 2017 - 24th January 2021. 4 for this article. Jocelyn Sharlet records a roughly similar story of resistance to sale or gift. 36. : Harvard University Press, 2010)Google Scholar, esp. Marie Failinger, Elizabeth Schiltz, and Susan J. Stabile (New York: Routledge, 2014), 178–79. 16 Gordon, Matthew S. and Hain, Kathryn (Oxford: Oxford University Press, forthcoming)Google Scholar. 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? Yet in sharp contrast to their silence about slaves’ consent to sex with their owners, scholars paid significant attention to consent to marriage. Il offre, en effet, certain droits aux concubins, notamment en matière de logement. 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 Ali, Marriage and Slavery, 158–59. They agreed unanimously that an enslaved female's consent was never required for a marriage contracted by her owner. 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