and His words: “You were not with them when they cast lots with their pens to decide who would be Mary’s guardian” (Āl ʿImrān 3:44).

Among the textual proofs as well is the authenticated report that “a man emancipated six slaves at the time of his death, whereupon the Messenger of Allah—may Allah bless him and grant him peace—cast lots among them and freed one-third of those bondsmen.”

Division effected by mutual consent—whether or not it is preceded by appraisal and equalisation—is permissible with slaves, whether they are all of one kind or of different kinds, for it amounts to a sale, and whatever is forbidden in sales alone is forbidden here.

Section Two
Concerning Chattels

With respect to livestock and other movable goods, the jurists are unanimously agreed that a single head or a single item may not be partitioned, for that would entail inherent corruption. They differ, however, when two partners become obstinate over such an indivisible item, refuse to share its use in common, and one of them wishes to compel the other to join him in selling it. Mālik and his companions say that he may indeed be compelled, and if one of the two wishes to take the item for himself at the price that has been offered, he may do so.

The Ẓāhirīs maintain that compulsion is impermissible, for the foundational rule is that no one’s ownership may be removed from his hand except on the basis of evidence from the Qur’an, the Sunnah, or consensus.

Mālik’s proof is that leaving the matter without compulsion would cause harm; this rests on the principle of unrestricted analogy (qiyās mursal). We have explained elsewhere that none of the jurists of the major centres subscribes to it except Mālik, yet in certain cases it becomes practically indispensable.

If the goods comprise more than one genus, the scholars agree that they may be divided by mutual consent. They disagree, however, over partitioning them by appraisal and the casting of lots. Mālik and his disciples permit it when the goods belong to a single genus, whereas ʿAbd al-ʿAzīz ibn Abī Salamah and Ibn al-Mājishūn forbid it.

Mālik’s followers themselves differ over how to identify the single genus in which lots are permissible. Ashhab ties it to whatever cannot lawfully be delivered piecemeal in a salam transaction. Ibn al-Qāsim’s view is unsettled: at times he allowed division by lot in cases where piecemeal delivery in salam is not allowed—thus making partition lighter than salam—and at other times he forbade partition whenever salam is forbidden. Some have said that his true position is that partition in such cases is indeed lighter, and that the statements suggesting he views it as stricter than salam can be reconciled with this second principle.

Ibn Ḥabīb held that items which are close in nature—such as brocade and pure silk, or cotton and linen—may be combined in a single division. Ashhab went so far as to allow two different kinds to be combined in a lot-based partition when the partners consent, but this is weak, for uncertainty (gharar) cannot be rendered lawful merely by mutual agreement.