Whoever regards the remainder of the general verse as having been further restricted by analogy—or who denies that what survives after specification can still be called general—concludes that it is permissible to marry a Christian or Jewish slave-girl.

Conversely, whoever gives precedence to the residual general wording, on the grounds that it has not itself been qualified, over analogy rules that marrying such a slave-girl is impermissible.

A further cause of their divergence is the clash between inference by implication (dalīl al-khiṭāb) and analogy. The Almighty says, “from among your believing maidservants” (al-Nisāʾ 4:25). By converse implication this forbids the marriage of a slave-girl who is not a believer, whereas analogy with the free woman would permit it. (Analogy argues that every class of women for whom marriage by contract is lawful is likewise a class in which union by right of ownership is lawful, taking Muslim women as the point of departure. A second group replies that, since the Qur’an permits marriage to a Muslim slave-girl by contract only under certain conditions, it follows a fortiori that marrying a Christian or Jewish slave-girl by contract should not be allowed.)

The jurists nevertheless agree that relations with her are lawful by right of ownership, relying on the universal phrase, “except those whom your right hands possess” (al-Nisāʾ 4:24), and on their consensus that the capture of an unmarried woman renders her lawful. They differ only over the married captive: does captivity annul her previous marriage, and, if so, when?

One group says that if husband and wife are captured together the marriage is not dissolved, but if one is captured before the other it is dissolved; this is the position of Abū Ḥanīfah. Another group holds that captivity annuls the bond in every case, whether they are seized together or separately; this is the view of al-Shāfiʿī. Two reports are given from Mālik: one that captivity never annuls the marriage, and another that it annuls it absolutely, like al-Shāfiʿī’s opinion.

The root of their disagreement—whether captivity annuls or does not annul—lies in the uncertain classification of captives spared execution: do they resemble covenant-bound dhimmī women, or do they resemble an unbelieving woman who has no husband, or one leased from an unbeliever? Abū Ḥanīfah’s distinction between their being captured together and their being captured separately stems from his view that the decisive factor making her lawful is their transfer to a different territory, not enslavement itself; for the others, the decisive factor is the slavery. The real question, then, is whether the operative element is enslavement together with the survival of the marriage bond or enslavement with its absence. The more plausible view is that the bond carries no weight here, because the ruling hinges on the condition of slavery, and it is her unbelief that constitutes the legal basis for licitness. As for likening her to a dhimmī woman, that is remote, for the dhimmī pays the jizyah on condition that she be left in her religion, let alone her marriage.

Section Nine: The Impediment of Iḥrām

The jurists also differed over the validity of a marriage contracted by someone in a state of iḥrām. Mālik, al-Shāfiʿī, al-Layth, al-Awzāʿī, and Aḥmad maintain that a pilgrim in iḥrām may neither contract a marriage nor have one contracted on his behalf; should he do so, the marriage is void. This is also the position of ʿUmar ibn al-Khaṭṭāb, ʿAlī, Ibn ʿUmar, and Zayd ibn Thābit. Abū Ḥanīfah, however, sees no objection to it.

Their disagreement results from conflicting textual evidence. Among the pertinent reports is the ḥadīth of Ibn ʿAbbās stating that “the Messenger of Allah ﷺ married Maymūnah while he was in a state of iḥrām,” a narration whose transmission is sound