They—that is, Abū Ḥanīfah, al-Thawrī and al-Awzāʿī—say that fornication entails every prohibition that a lawful marriage entails. As for Mālik, the report recorded from him in the Muwaṭṭaʾ agrees with al-Shāfiʿī: fornication does not establish such prohibitions. Yet Ibn al-Qāsim transmits from Mālik the same view held by Abū Ḥanīfah, namely, that it does. Sahnūn observed: “Mālik’s companions disagree with Ibn al-Qāsim in this matter and adopt what is found in the Muwaṭṭaʾ.” A report from al-Layth states that intercourse resulting from mistaken belief (shubha) does not create any prohibition; this report is anomalous.

The root of the disagreement lies in the double meaning of the word nikāḥ—its technical (legal) and its lexical senses. Whoever attends to the lexical sense in the Almighty’s words, “Do not marry those women whom your fathers married” (al-Nisāʾ 4:22), concludes that fornication is included in the ban. Whoever attends to the technical, legal sense concludes that it is not. Those who explain the ruling by the sacred bond between mother and daughter, or between father and son, likewise maintain that fornication produces the prohibition. Those who analogize it to lineage say it does not, because the overwhelming consensus is that lineage is not established through fornication.

Ibn al-Mundhir relates that there is consensus that intercourse with a female slave whom one owns gives rise to the same prohibitions as intercourse within marriage. They differed, however, about the effect of mere sexual contact short of intercourse in the case of ownership, just as they differed about it in marriage.

Section Three: The Impediment of Breast-feeding

The scholars agree that, in principle, breast-feeding renders unlawful all those whom consanguinity renders unlawful: the wet nurse assumes the rank of a mother, and thus she herself and everyone who is forbidden through a natural mother becomes forbidden to the suckling child.

They nevertheless disagreed about many particulars—nine foundational issues in particular:

1. The quantity of milk that establishes the prohibition.
2. The age limit within which the nursing must occur.
3. Whether, for those who impose a specific time frame, the nursling must actually be within that frame when suckling.
4. Whether it is a condition that the milk reach the child through direct suckling at the breast.
5. Whether bodily absorption (mukhālaṭa) is required.
6. Whether the milk must pass down the throat.
7. Whether the owner of the milk—that is, the husband—assumes toward the nursling the status of a father (this is what they call “the sire’s milk”), or not.
8. Testimony establishing that breast-feeding took place.
9. The qualifications of the wet nurse.

Issue One: The Quantity of Milk That Prohibits

Some jurists maintained that no minimum is required; this is the school of Mālik and his companions and is reported from ʿAlī and Ibn Masʿūd. It is likewise the view of Ibn ʿUmar and Ibn ʿAbbās, and these scholars hold it to render unlawful—