saying: “This is a slave woman who conceived, while owned by the man who had intercourse with her, a child who is free by virtue of his father. Her sale is therefore forbidden by analogy with her condition during pregnancy.” We specified “while owned by the man who had intercourse with her” to exclude a slave woman who conceives within marriage. We specified “a child who is free by virtue of his father” to exclude a child emancipated by the slave woman’s master, since his freedom does not derive from his father.
This analogy rests on the validity of presuming the continuation of a state established by consensus, which is a valid form of reasoning. Abū Sa‘īd al-Barādhi‘ī used it against Dāwūd al-Qiyāsī when debating this question with him, leaving him confounded and unable to reply. Dāwūd al-Qiyāsī had argued from the presumption of continuity, saying: “We agree that selling her was permissible before conception. Whoever claims that selling her after childbirth is impermissible must therefore produce evidence.” Abū Sa‘īd replied: “Why should this not be countered by a stronger argument: we agree that selling her during pregnancy is prohibited, so whoever claims that selling her becomes permissible after she gives birth must produce evidence?” He said: “He fell silent and said nothing.”
Thus, the scholars hold three views concerning the sale of slave women who have borne children to their masters:
The first is the view of Mālik and the scholars generally: she may never be sold, whether to settle debts or for any other purpose, and her emancipation is charged against the estate as a whole.
The second is the view of the literalists: she may be sold to settle debts or for other purposes, and her emancipation is charged neither against the estate as a whole nor against its one-third portion. Al-Shāfi‘ī expressed the same view in several places in his books. He then stated conclusively in fourteen places in his books that such women may not be sold, whether to settle debts or for any other purpose, agreeing with Mālik and the majority of scholars.
The third is that she may be sold only to settle debts. This is the position that ‘Alī, may Allah be pleased with him, reportedly adopted and then abandoned, as we have explained. The report from Ibn Mas‘ūd, Ibn ‘Abbās, and Ibn al-Zubayr that her emancipation is charged against the inheritance share of the child in her womb constitutes a fourth view on the question.
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Al-Shāfi‘ī permitted hiring a slave woman who had borne her master’s child for service and putting her to work. This differs from Mālik’s position that she may not be hired out or put to work except at light, unstrenuous tasks, even if she is of low social standing. A woman of low standing may be assigned light chores that would not be assigned to one of high standing. The evidence supporting Mālik’s position, may Allah have mercy on him, is that any protected status that precludes the sale of a slave also precludes