Chapter on Walāʾ (The Bond of Allegiance)

Concerning those for whom walāʾ is established, there are several well-known issues that function as foundational principles for this subject.

The First Issue
The scholars unanimously agree that when a man frees his own slave, the freedman’s walāʾ belongs to the emancipator. If the freedman dies leaving no heirs, the emancipator inherits his estate; if the freedman does have heirs but their shares do not exhaust the estate, the emancipator stands as an agnate who receives the residue.

That the walāʾ is the right of the one who personally emancipates is confirmed by the Prophet’s—peace and blessings be upon him—statement in the ḥadīth of Barīrah: “Walāʾ belongs only to the one who sets free.”

The jurists differed, however, when a person frees a slave on behalf of someone else:
• Mālik held that the walāʾ belongs to the person on whose behalf the manumission was carried out, not to the one who actually performed it.
• Abū Ḥanīfah and al-Shāfiʿī maintained: if the slave is freed with the principal’s knowledge, the walāʾ goes to that principal; but if he is freed without the principal’s knowledge, the walāʾ belongs to the one who physically effected the manumission.

The Ḥanafīs and Shāfiʿīs base their position on the outward sense of the Prophet’s words, “Walāʾ belongs to the one who sets free,” and on his saying, “Walāʾ is a blood-tie like the tie of lineage.” They argue: just as no lineage can be attributed to a freeborn person without his consent, neither can walāʾ be attached to him without his permission.

From a rational standpoint they add: manumission is an act of enfranchisement that takes place within the property of the emancipator; therefore its legal consequences—including walāʾ—ought to revert to him, just as they do when he frees a slave of his own accord.

Mālik’s evidence is that, by emancipating the slave for someone else, the liberator has effectively transferred ownership to that person, making the case analogous to an agent acting for a principal. For this reason all agree that if the principal explicitly authorises the act, the walāʾ is his, not the agent’s.

Mālik further rules that if a man says to his slave, “You are free for the sake of Allah and for the Muslims,” the walāʾ reverts to the Muslims at large, whereas the other jurists hold that it remains with the emancipator.

The Second Issue
The scholars differed over a person who enters Islam at someone’s hands: does walāʾ accrue to the one through whom he embraced the faith?
• Mālik, al-Shāfiʿī, al-Thawrī, Dāwūd, and a number of others say: no walāʾ is established for him in this manner.
• Abū Ḥanīfah and his colleagues reply: he acquires walāʾ if he formally pledges allegiance (muwālāt) to that man. Their school allows a person to enter into a walāʾ agreement with someone, thereby entitling the latter to inherit from him and obligating him to pay the former’s blood-money; they also allow the client to withdraw from one patron in favour of another so long as no blood-money has yet been paid on his behalf.
• Still others maintain that merely accepting Islam at a man’s hands suffices to confer walāʾ upon that man.

The first group’s principal evidence is the ḥadīth, “Walāʾ belongs only to the one who sets free.” They regard the particle innamā and the definite article in this report as instruments of restriction, which confine the ruling exclusively to the direct emancipator—meaning that no walāʾ can be established, according to the purport of this statement, except for the one who actually carries out the manumission.

The Ḥanafīs, on the other hand, prove the establishment of walāʾ through a muwālāt pact by citing the words of the Exalted: “For each We have appointed inheritors to what parents and near kindred leave behind” and “Those with whom your right hands have made a pact—give them their share” (al-Nisāʾ 4:33).