—that is, if we imagine one of the pair as a man and the other as a woman and find that the two would be forbidden to marry, then those two may not be joined in wedlock. By contrast, if turning only one of them into a man would make marriage unlawful while turning the other into a man would not, their combination is permissible. The case of a man’s wife and his daughter by another woman illustrates this: were the daughter viewed as a son, the wife could not marry him, for she is his father’s spouse; but were the wife viewed as a husband, she could lawfully marry her step-daughter, since the girl would then be the daughter of a stranger. This is the principle adopted by Mālik’s companions, whereas the other jurists bar the combination of a man’s wife with his daughter by another woman.
Section Seven: Impediments Arising from Slavery
The jurists are agreed that a male slave may marry a female slave, and that a free woman may marry a male slave if she and her guardians consent. They differed, however, about a free man’s marrying a slave-woman.
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Some held it to be unrestrictedly permissible; this is the well-known position transmitted from Ibn al-Qāsim.
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Others allowed it only with two conditions: (a) the man lacks the financial means (ṭawl) to marry a free woman, and (b) he fears falling into sexual hardship (ʿanat). This is the famous view of Mālik and likewise the position of Abū Ḥanīfah and al-Shāfiʿī.
Reason for the disagreement
It lies in the apparent tension between the argument from wording (dalīl al-khiṭāb) in the Almighty’s words,
“And whoever among you cannot afford to marry free, believing women…” (al-Nisāʾ 4:25),
and the general wording of His words,
“Marry off the single ones among you, and the righteous among your slaves, male and female…” (al-Nūr 24:32).
The implied meaning of the first verse shows that marrying a slave-woman is lawful only when two conditions are met:
- lack of means to marry a free woman, and
- fear of sexual hardship.
The general wording of the second verse, however, embraces marrying them to free men or slaves, whether the free man is single or not, and whether or not he fears hardship. Yet the argument from wording is stronger in this instance—God knows best—because the general verse does not discuss the qualifications required of a husband in the case of slave-women. Rather, its aim is to command that they be married off and not coerced, and the majority understand it as a recommendation. Moreover, such unions can result in one’s own child being born into slavery.
Two famous subsidiary questions arose among those who restrict the marriage to the two stated conditions:
First: If a man already has a free wife, does that count as “means” (ṭawl) or not? Abū Ḥanīfah said that it does; others said that it does not, and both opinions are reported from Mālik.
Second: May a man who fulfills the two conditions marry more than one slave-woman—two, three, or four? Those who argue that having a free wife removes the fear of hardship, since the man is not single, rule that if he already has a free wife he may not marry a slave-woman. Those who say that fear of hardship is to be considered in an absolute sense, whether the man is single or