to emancipate the slave, according to his school, is that emancipation has not yet taken effect. He has merely vowed to emancipate him, and must therefore fulfil his vow to Allah. Such fulfilment requires the intention of seeking nearness to Allah through emancipating him and fulfilling the vow made to Him. If the slave were emancipated against his owner’s will, this would not fulfil his vow, because he had not intended to seek nearness to Allah through that emancipation. He would thus have been prevented from fulfilling his vow, since he cannot emancipate the slave a second time if the vow concerns that particular slave. This is Mālik’s reason for not allowing emancipation to be imposed upon him by judicial order. Allah knows best.
Ashhab said: He is instructed to emancipate the slave. If he promises to do so, he is left alone and granted time. But if he refuses, saying, “I will not emancipate him or fulfil my vow to Allah concerning him,” the slave is emancipated by judicial order. Mālik’s position accords with legal analogy, whereas Ashhab’s rests on juristic preference. Likewise, if he vows to emancipate a particular slave, he is not judicially compelled to emancipate a slave, because emancipation imposed by judicial order would not discharge his obligation. He would still have to emancipate a second slave with the intention of seeking nearness to Allah and fulfilling his vow.
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Emancipation during illness is charged against one-third of the estate, by scholarly consensus. It is held in abeyance until the owner dies and does not take effect during his illness, unless he has secure assets—subject to the disagreement over whether secure assets are to be taken into account. The basis for this is the established report:
“A man emancipated six slaves of his as he lay dying. The Messenger of Allah ﷺ drew lots among them and emancipated one-third of those slaves.”
The disagreement concerns a sick person’s gifts and charitable donations. Mālik, the jurists of the major centres, and the majority of scholars held that these are charged against one-third of the estate. The Literalists held that his gifts and grants are valid and that his disposal of his property is legally effective.
Our evidence is that emancipation is charged against one-third, and that a sick person’s gift to his heir is not permissible. Such a gift during illness is impermissible because a bequest to that heir is impermissible. Likewise, a person who is not an heir may receive no more than one-third, since anything exceeding one-third is impermissible for him after a bequest. If anyone challenges our position concerning a sick person’s gift to his heir, our evidence against him is the Companions’ consensus concerning Abū Bakr’s statement to ‘Ā’isha:
“Had you set it apart or taken possession of it, it would have been yours. Today, however, it is the heirs’ property.”
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Emancipation after death is charged against one-third of the estate by consensus, and takes four forms: