If a hostile non-Muslim (ḥarbī) sets his slave free while both of them are still upon his religion, and the two of them later come to us as Muslims, Mālik said:
“He remains the slave’s mawlā and inherits from him.”
Abū Ḥanīfah replied:
“There is no walāʾ between them; the freedman may attach his walāʾ to whomever he wishes, according to Abū Ḥanīfah’s doctrine concerning walāʾ and formal alliances.”
Ashhab dissented from Mālik, saying:
“If the slave becomes Muslim before the master, his walāʾ can never revert to the master.”
Ibn al-Qāsim countered:
“It does revert, and that is what Mālik intended, for Mālik bases the ruling on the moment of manumission.”
All of these questions are purely hypothetical; they do not occur in practice, for it is not part of Christian law that Christians enslave one another, nor—according to what the Jews now maintain—does their law permit Jews to enslave one another.
Fifth Issue
The overwhelming majority of scholars agree that women have no share in inheriting walāʾ, except in two situations:
- when they have personally carried out the manumission; or
- when someone who performed the manumission—whether through walāʾ or kinship—has emigrated to them, such as the freedman of her freedman or the son of her freedman.
They further hold that women do not inherit the walāʾ of a man whose estate they inherit, save for what is related from Shurayḥ.
Shurayḥ’s proof is that since a woman is entitled to the walāʾ of those whom she herself emancipates, she should, by analogy with the male, also receive the walāʾ of those emancipated by her predecessor. This is what jurists call “analogy of meaning,” the highest level of qiyās, though its force is weakened by its being an isolated view.
The majority, however, argue that walāʾ is owed only because of the beneficence shown by the emancipator to the emancipated, and that beneficence exists solely in the one who directly effected the manumission or in a strong causal link to it—namely the agnatic relatives (ʿaṣabah).
The Qāḍī said:
“Now that it is clear who is entitled to walāʾ and who is not, what remains is to determine the order of precedence among those who do hold walāʾ.”
One of their most famous problems in this chapter is the case known as “walāʾ for seniority (al-kibar).”
Example:
A man frees a slave and then dies, leaving two brothers—or two sons. Later one of the brothers dies and leaves a son, or one of the two sons dies.
The majority say that in this situation the deceased brother’s share of the walāʾ does not pass to his son; it reverts to the surviving brother, because he has a stronger claim to it than the nephew—unlike the rules of inheritance, where priority is based on proximity to the deceased. Here, priority is based on proximity to the emancipator. This view is transmitted from ʿUmar ibn al-Khaṭṭāb, ʿAlī, ʿUthmān, Ibn Masʿūd, and Zayd ibn Thābit.
Shurayḥ and a group from Baṣrah held that the deceased brother’s right in this case belongs to his sons. Their principal argument is the analogy between walāʾ and inheritance. The first group’s principal argument is that walāʾ is a kind of kinship whose origin lies with the person who effected the manumission.
Another well-known issue in this chapter is the question called “drawing the walāʾ (jarr al-walāʾ).” Its form is as follows:
A male slave has sons by a slave-woman. The woman is freed first, and the man is freed later. The scholars differed about to whom the sons’ walāʾ belongs when their father is emancipated. They agree that after the mother’s emancipation the sons’ walāʾ belongs to her patrons, provided the child was never in a state of slavery while in his mother’s womb. That occurs when the male slave married her after her emancipation and before his own, in which case the walāʾ is the right of the mother’s patrons.