needy persons, and that these three forms are to be observed in the stated order: manumission first; if that is impossible, then a fast of two consecutive months; and if fasting is impossible, feeding. This sequence applies to a free man.
The jurists then differed over a slave who must make expiation: may he discharge it by manumitting another slave or by feeding the poor, after they had already agreed that his first option is fasting (so long as he is able to fast)? Abū Thawr and Dāwūd allowed him to free a slave—provided his master consents—whereas the rest of the scholars did not. As for feeding, Mālik permitted it with the master’s permission, while Abū Ḥanīfah and al-Shāfiʿī did not.
The root of this disagreement is whether a slave has the legal capacity to own property.
Among the conditions affecting the validity of the expiation, they disagreed about the following: if the husband has intercourse during the two-month fast, must he start the fast anew? Mālik and Abū Ḥanīfah said that he must, though Abū Ḥanīfah restricted this to deliberate intercourse, whereas Mālik did not distinguish between deliberate and inadvertent. Al-Shāfiʿī held that in no case must the fast be recommenced.
The reason for the divergence is whether the expiation for ẓihār is to be likened to the expiation for a broken oath, and the condition explicitly mentioned for ẓihār—namely, that the expiation precede intercourse. Those who give weight to this condition say he must restart the fast; those who assimilate it to the expiation for an oath say he need not, because the expiation for an oath, by consensus, erases the offence even after it has occurred.
Another issue: is it a condition that the slave to be emancipated be a believer? Mālik and al-Shāfiʿī maintained that faith is required for the expiation to count, whereas Abū Ḥanīfah held that emancipating a non-Muslim slave suffices, though according to them the freeing of an idol-worshipper or an apostate woman does not. The first group argues that this act of emancipation is a form of devotion and therefore the slave must be Muslim, as in the expiation for manslaughter. They also contend that this is not analogy but the principle of reading an unqualified term in light of a qualified one: the Qur’an specifies “a believing slave” in the expiation for manslaughter yet leaves the term unqualified in that of ẓihār, so the unrestricted text must be construed by the restricted one. There is, however, disagreement over this hermeneutic, and the Ḥanafīs reject it because the underlying causes in the two rulings differ. Abū Ḥanīfah’s evidence is the plain general wording; since in his view there is no clash between the unqualified and qualified texts, each is applied as it stands.
Yet another point of contention: must the slave be free of defects, and if so, of which defects? The majority maintain that physical defects do prevent the emancipation from sufficing, while others say they have no effect. The majority argue by analogy with sacrificial animals and charitable offerings, for both are devotional acts; the opposing group relies on the unrestricted wording of the verse. Hence the dispute arises from the tension between the apparent text and the analogy of similarity. Those who hold that defects are relevant further disagreed—defect by defect—over which ones negate the validity and which do not.