or exchange her person or services for compensation, surrender her in compensation for an offence, or free her in discharge of an obligation. His only right over her is sexual enjoyment, through intercourse or lesser intimacy, throughout his lifetime. Upon his death, she is freed from his estate as a whole. This is the position of Mālik, may Allah have mercy on him, and all the jurists of the major centres of learning.

The Companions, may Allah be pleased with them, had differed over this matter. Some permitted their sale: Abū Bakr al-Siddīq, ‘Alī ibn Abī Tālib, ‘Abd Allāh ibn ‘Abbās, ‘Abd Allāh ibn al-Zubayr, ‘Abd Allāh ibn Qays, and Abū Mūsā al-Ash‘arī. This was also the position of “Jābir ibn ‘Abd Allāh and Abū Sa‘īd al-Khudrī, both of whom are reported to have said: ‘We used to sell slave women who had borne children to their masters during the lifetime of the Messenger of Allah, may Allah bless him and grant him peace, seeing no harm in doing so.’” ‘Abd Allāh ibn Mas‘ūd said: “She is freed against her child’s share of the inheritance.” This is also reported from Ibn ‘Abbās and Ibn al-Zubayr.

This continued until Abū Hafs ‘Umar ibn al-Khattāb, may Allah be pleased with him, examined and clarified their situation. Although he had previously permitted their sale, according to reports from him, he and those present with him—the remaining members of the Ten and others among the Emigrants and Helpers—agreed that their masters could enjoy them throughout their lives, but that upon their masters’ deaths they would be freed from their estates as a whole. Consensus was thus established from that time onward, and the matter remained settled until the days of ‘Abd al-Malik ibn Marwān, apart from the reported return of ‘Alī ibn Abī Tālib, during his caliphate, to permitting their sale to settle debts.

Uncertainty then arose concerning their status, so ‘Abd al-Malik investigated the matter. Al-Zuhrī informed him, on the authority of Sa‘īd ibn al-Musayyab, that ‘Umar ibn al-Khattāb had enacted what I have described. It is also related that he informed him that al-Miswar said that the Prophet, peace be upon him, said: “They are not to be sold to settle debts, nor is their emancipation to be charged against the disposable third of the estate.” He therefore confirmed this and wrote to the provinces accordingly.

Some jurists claim consensus on this question. The report that ‘Alī ibn Abī Tālib changed his position is not authentic. This follows the view adopted by Ibn al-Qassār and those who followed him: that consensus is not established until the generation concerned has passed away. Thus, the consensus reached during the caliphate of ‘Umar ibn al-Khattāb is not invalidated by ‘Alī’s change of position during his own caliphate. Moreover, the reports of his change of position contain evidence that he returned to the position upon which consensus had been established, thereby renewing that consensus in his own time. This is indicated by ‘Ubayda al-Salmānī’s statement in his account: “He accepted what I said and acknowledged that I was right.” Al-Sha‘bī narrated on the authority of