Book of Umm al-Walad
The foundational questions examined in this book are:
- May an umm al-walad be sold or not?
- If she may not be sold, at what point does she become an umm al-walad?
- By what circumstance does she acquire that status?
- Which rulings of servitude continue to apply to her vis-à-vis her master?
- And when does she become free?
The first question
The scholars, early and late, have differed on it. What is soundly reported from ʿUmar (may Allah be pleased with him) is that he ruled she is not to be sold and that, when her master dies, she is to be freed out of the capital of his estate. The same is narrated from ʿUthmān, and it is the position of most of the Tābiʿīn and the great majority of the jurists of the various regions.
Abū Bakr al-Ṣiddīq and ʿAlī—may Allah be pleased with them both—as well as Ibn ʿAbbās, Ibn al-Zubayr, Jābir b. ʿAbd Allāh, and Abū Saʿīd al-Khudrī held that an umm al-walad may be sold; the Ẓāhirī jurists embraced the same view. Jābir and Abū Saʿīd said,
“We used to sell ummahāt al-awlād while the Prophet—peace and blessings be upon him—was among us, and he saw no harm in it.”
They also adduced the report in which Jābir stated,
“We used to sell ummahāt al-awlād in the lifetime of the Messenger of Allah—peace and blessings be upon him—during the time of Abū Bakr and the early part of ʿUmar’s caliphate; then ʿUmar forbade us to sell them.”
Among the proofs relied upon by the Ẓāhirīs here is the mode of reasoning known as “maintaining the state established by consensus” (istishḥāb ḥāl al-ijmāʿ). They argue that, since consensus existed that she was owned property before giving birth, she must remain so afterward until evidence shows otherwise. Works of legal theory acknowledge the strength of this inference, yet it carries no weight with those who accept analogy (qiyās) and functions only as a proof for those who deny analogy.
The majority sometimes rebut them with a parallel argument, termed “counter-claiming.” They say: “Do you not concede that there is consensus on forbidding her sale while she is pregnant? If so, that consensus must be presumed to continue after she has delivered”—though later Ẓāhirīs have undermined this principle by refusing to concede the prohibition of selling her while pregnant.
Among the textual proofs upon which the majority rely in this chapter is what is related about his bondwoman Marīyah: when she bore Abraham, the Prophet—peace and blessings be upon him—said, “Her child has set her free.” They also cite the ḥadīth of Ibn ʿAbbās from the Prophet—peace and blessings be upon him—