she would have belonged to the woman who escaped on her, and her vow concerning the camel would have been binding. Their rational argument is that, since all agree that the polytheists cannot acquire ownership of our persons, they must likewise be unable to acquire ownership of our property. Reason requires that no distinction be made between our property and our persons in this respect, just as no distinction is made between their persons and their property with regard to our acquiring ownership of them.
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According to the view that they acquire ownership of such property by taking possession of it, its original owners lose their title to it. If the Muslims capture it as spoils, it belongs to the army, and its original owners have no right to recover it, either before or after distribution. Another view holds that they may recover it if they find it before distribution, but have no claim to it once it has been distributed. A further view holds that they may recover it after distribution upon payment of its price. This is the position of Mālik and all his companions, based on the reports concerning this matter transmitted from the Prophet, may Allah bless him and grant him peace, through Ibn ‘Abbās and Tamīm ibn Tarafah al-Tā’ī. It accords with the view that those who capture spoils do not acquire established ownership of them until distribution. Thus, anyone among them who has intercourse with a slave woman from the spoils is subject to the prescribed punishment, and his attempt to emancipate her is not valid.
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Whatever those at war with the Muslims seize from them falls into one of six categories: first, free Muslims; second, free people under Muslim protection; third, the property of Muslims and of those under Muslim protection, since the ruling is the same for both; fourth, Muslim men’s slave women who have borne them children; fifth, their slaves designated for emancipation upon their owners’ death, and those designated for emancipation at a fixed future date; and sixth, their slaves under contracts of manumission.
Everything they seize in these categories is subject to one of six circumstances: first, they sell it in their own lands; second, they bring it into Muslim territory under a guarantee of safe conduct; third, the Muslims capture it as spoils; fourth, they embrace Islam while it remains in their possession; fifth, they conclude a truce while it remains in their hands; and sixth, they conclude an agreement to pay jizyah while it remains in their hands. These therefore constitute thirty-six cases, since each of the six categories they have seized is subject to six circumstances, as we have mentioned. Each case has its own particular rulings. We shall mention enough of them to indicate the rulings governing the remainder, if Allah Most High wills.