Al-Nūr: (33) And let those who do not find [means for] marriage exercise modesty...

Know that when the Almighty mentioned the marriage of free women and slave women, He then mentioned the condition of those who are unable to do so, saying:

{And let those who do not find [means for] marriage exercise modesty (wa-līstaʿfif)}

This means they should strive for chastity, as if the one seeking modesty is demanding it from himself and compelling himself toward it.

As for His saying: {do not find [means for] marriage (lā yajidūna nikāḥan)}, the meaning is that they are unable to attain it. It is said that a person "does not find" something when he cannot attain it. Allah the Exalted says: {But whoever cannot find [means for] it, then [let him fast] two months consecutively} (Al-Mujadilah: 4), and by consensus, this refers to one who is unable to attain it. We also say about someone that he "does not find water" even if it exists, if he cannot afford to buy it.

It is also possible that nikāḥ (marriage) here refers to the wealth required for marriage. Thus, the Almighty clarified that whoever cannot attain that, let him seek modesty and wait for Allah to enrich him from His bounty, so he may then reach his goal of marriage.

If it is asked: Does not possessing a female slave (milk al-yamīn) substitute for marriage itself? We reply: No, but for one who cannot find the mahr (dower) or maintenance, the inability to find the price of a slave girl is even more primary. And Allah knows best.

The Ninth Ruling: Concerning Kitābah (Manumission by Agreement)

Know that when the Almighty commanded the master to marry off the righteous among his male and female slaves despite their servitude, He encouraged them to enter into Kitābah with them if they requested it, so they might become free and dispose of their affairs like free people. He said: {And those who seek Kitābah}.

Herein lie several issues:

His saying: {And those who seek (wa-lladhīna yabtaghūna)} is in the nominative case (as a mubtadaʾ - subject), or it is in the accusative case due to an implied verb explained by {so manumit them (fakātibūhum)}, similar to saying: "Zayd, so strike him." The fāʾ (so) is added because it implies a conditional meaning.

Al-Kitāb and al-Kitābah are like al-ʿitāb and al-ʿitābah (reproach). There are several views regarding the derivation of the word Kitābah:

1. That the root of the word is from al-katb, meaning joining and gathering. From this comes al-katībah (battalion), so named because it gathers soldiers together, and because one gathers his wealth with another's wealth.
2. It is possible that the word is derived from al-kitāb (the writing/book), meaning: "I wrote upon myself that you are free if you fulfill the wealth obligation," and "You wrote upon yourself that you will fulfill that for me," or "You wrote a document for me concerning the fulfillment of the wealth, and I wrote concerning manumission." This is what Al-Azhari mentioned.
3. It is named this because it involves a deferment (taʾjīl) regarding the agreed-upon wealth. This is because the contract cannot stipulate payment immediately (ḥālan) from wealth already in the slave's possession when the Kitābah is contracted, as that wealth belongs to the master. Since the master's claim over the slave's earnings is not yet fully established while the slave is still a slave, this contract cannot take effect immediately. Rather, it takes effect on a deferred basis so that the slave may be able to earn and acquire wealth once the master's claim over his earnings is lifted. Furthermore, it is a custom of the Sharia to write a document for one who owes deferred wealth. Therefore, this contract is named Kitābah because of the deferment involved, as Allah the Exalted says: {For every term there is a writing} (Ar-Raʿd: 38).

Muḥyī al-Sunnah (Al-Baghawī) said: Kitābah is when the master says to his slave: "I have contracted Kitābah with you for such-and-such," referring to a known sum of money that he will pay in two installments (najm) or more. He specifies the number of installments and the amount paid in each installment, and says: "When you pay that wealth, you are free," or he intends that in his heart. The slave says: "I accept."

There are discussions regarding this definition:

First Discussion: Al-Shāfiʿī, may Allah have mercy on him, said: If he does not say with his tongue or intend in his heart, "When you pay that wealth, you are free," the slave is not manumitted. Abū Ḥanīfah, Mālik, Abū Yūsuf, Muḥammad, and Zufar, may Allah have mercy on them, said that this is not necessary.

• Argument of Abū Ḥanīfah, may Allah have mercy on him: His saying, the Exalted, {so manumit them (fakātibūhum)} is devoid of this condition, so the Kitābah must be valid without this condition. Once the Kitābah is valid, manumission upon fulfillment is obligatory due to consensus (ijmāʿ).
• Argument of Al-Shāfiʿī, may Allah have mercy on him: Kitābah is not a pure contract of exchange (muʿāwaḍah), because what is in the slave's possession is the master's property, and a person cannot sell his property for his own property. Rather, his statement "I contracted Kitābah with you" is a contract concerning manumission, so the word or intention of manumission is necessary.

Second Discussion: Kitābah cannot be immediate (ḥālah) according to Al-Shāfiʿī, but it is permissible according to Abū Ḥanīfah.

• Argument of Al-Shāfiʿī, may Allah have mercy on him: It is inconceivable for the slave to possess wealth that he can pay immediately. If the contract is made immediately, the demand for payment arises immediately. If he is unable to pay, the purpose of the contract is not achieved, just as if one enters into a contract for something that does not exist at the time of the contract, it is invalid. This differs from lending to an insolvent person, which is permissible because, at the time of the contract, it is conceivable that he possesses wealth internally, so the inability to pay is not confirmed.
• Argument of Abū Ḥanīfah, may Allah have mercy on him: His saying, the Exalted, {so manumit them (fakātibūhum)} is absolute and includes immediate and deferred Kitābah. Furthermore, since the wealth of Kitābah is a substitute for the slave's person, it is like the prices of sold commodities, so it can be stipulated immediately or deferred. Also, there is consensus that manumission suspended upon immediate wealth payment is permissible. Therefore, Kitābah must be like it, as it is a substitute for manumission in both cases—except that in one case, manumission is suspended upon the condition of payment, and in the other, it is immediate. Thus, their rulings should not differ.

Third Discussion: Al-Shāfiʿī, may Allah have mercy on him, said: Kitābah is not permissible for less than two installments (najmayn). This is narrated from ʿAlī, ʿUthmān, and Ibn ʿUmar. It is narrated that ʿUthmān, may Allah be pleased with him, became angry with his slave and said: "I will make matters difficult for you and contract Kitābah with you for two installments." If it were permissible for less, he would have contracted for the minimum, as that would be more restrictive. The requirement of installments is because it is a contract of facilitation (irfāq), and a condition for facilitation is installment payments to make fulfillment easier for them.

Abū Ḥanīfah, may Allah have mercy on him, said: Kitābah is permissible for a single installment because the apparent meaning of {so manumit them (fakātibūhum)} does not contain a restriction.

The Kitābah of a slave, whether male or female, is permissible. Al-Shāfiʿī, may Allah have mercy on him, stipulated that the slave must be sane and mature. If the slave is a child or insane, his Kitābah is not valid because Allah the Exalted said: {And those who seek Kitābah}, and seeking is not conceivable from a child or an insane person. According to Abū Ḥanīfah, may Allah have mercy on him, the Kitābah of a child is valid, and the master accepts it on his behalf.

It is stipulated that the master (al-Mawlā) must be accountable (mukallaf) without restriction. If he is a child, insane, or legally restricted due to foolishness, his Kitābah is not valid, just as his selling is not valid. This is because His saying: {so manumit them (fakātibūhum)} is an address, so it does not include the non-accountable. According to Abū Ḥanīfah, may Allah have mercy on him, the Kitābah of a child is valid with the permission of the guardian.

The scholars differed on whether His saying: {so manumit them (fakātibūhum)} is a command of obligation (ījāb) or a command of recommendation (istiḥbāb).

A group said it is a command of obligation, so the master must enter into Kitābah with his slave if the slave requests it for a price equal to or more than his value, provided the master knows there is good in him. If the price is less than his value, it is not obligatory. This is the view of ʿAmr ibn Dinār and ʿAṭāʾ, and it is the view adopted by Dāwūd ibn ʿAlī and Muḥammad ibn Jarīr.

• Their evidence: The apparent meaning of His saying: {so manumit them (fakātibūhum)}, as a command implies obligation. The reason for revelation also supports this: it was revealed concerning the slave of Ḥuwayṭib ibn ʿAbd al-ʿUzzā, named Ṣabīḥ, who asked his master to enter into Kitābah, but the master refused. The verse was revealed, and the master contracted Kitābah with him for one hundred dīnārs and gifted him twenty of them.
• The narration: It is narrated that ʿUmar commanded Anas to enter into Kitābah with Sayrīn (the father of Muḥammad ibn Sīrīn), but he refused. ʿUmar then raised the whip and struck him, saying: {so manumit them if you know there is good in them}, and swore he would make him enter into Kitābah. If this were not obligatory, striking him with the whip would have been unjust. No companion objected to ʿUmar's action, so it became like consensus.

The majority of jurists said it is a command of recommendation. This is the apparent view of Ibn ʿAbbās, Al-Ḥasan, and Al-Shaʿbī, and it is the view adopted by Mālik, Abū Ḥanīfah, Al-Shāfiʿī, and Al-Thawrī.

• Their evidence: The Prophet's saying, peace and blessings be upon him: "The wealth of a Muslim is not lawful except by his willing consent." They argue that there is no difference between demanding Kitābah and demanding the sale of someone whom one frees as expiation (for an oath, etc.). Since the latter is not obligatory, neither is the former. This is the general principle of exchange contracts.

Here arise two questions:

First Question: How can it be valid to sell his property for his property? Reply: When the Law stipulates it, it must be permissible, just as when one suspends his manumission upon wealth he will acquire, and he pays it or someone pays it on his behalf, it becomes a cause for his manumission.

Second Question: Does the slave gain something through the Kitābah contract that he would not possess without it? Reply: Yes, because if Zakāh were given to him without Kitābah, it would not be lawful for him to take it. Once he becomes a mukatab (one under Kitābah), it becomes lawful for him, and it is lawful for his master to receive it, whether he fulfills the payment and is freed, or he fails and reverts to slavery. He also gains motivation for diligence and effort in earning, which he would not have otherwise. The master gains reward, as selling him yields no reward, whereas contracting Kitābah yields reward. He also gains the right of patronage (al-walāʾ); if he were freed by someone else, the walāʾ would not belong to the master. But if he is freed through Kitābah, the walāʾ belongs to the master. Thus, the Law permitted Kitābah due to these benefits.

As for His saying: {if you know there is good in them (in ʿalimtum fīhim khayran)}, the scholars mentioned several interpretations of khayr (good):

1. What is narrated from the Prophet, peace and blessings be upon him: "If you know they have a craft, do not leave them as a burden upon the people."
2. ʿAṭāʾ said khayr means wealth, citing: {It is prescribed for you, when death approaches one of you, if he leaves behind khayr} (Al-Baqarah: 180), meaning wealth. He said he heard this from Ibn ʿAbbās.
3. Ibn Sīrīn said: If he prays. Al-Nakhaʿī said: fulfilling obligations and truthfulness. Al-Ḥasan said: righteousness in religion.
4. Al-Shāfiʿī, may Allah have mercy on him, said that khayr means trustworthiness and strength in earning, because the purpose of Kitābah is rarely achieved without these two. He should be one who earns to acquire wealth and be trustworthy to spend it on his installments without wasting it. If these two conditions, or one of them, are missing, it is not recommended to enter into Kitābah with him.

The most likely interpretation is that it should not be restricted to wealth for two reasons:

1. The common understanding when people say someone "has good" (fīhi khayr) is that they mean righteousness in religion. If they meant wealth, they would say: "He has wealth" (lahu māl), not "There is wealth in him" (fīhi māl).
2. The slave possesses no wealth; the wealth belongs to the master. Therefore, it is better to interpret it as that which ensures the completion of his Kitābah, which is what Al-Shāfiʿī mentioned: that he is capable of earning and is trustworthy in preserving it, as all of that contributes to the successful completion of his Kitābah. The Prophet's explanation of khayr as earning is included within Al-Shāfiʿī's interpretation.

As for His saying: {And let those who do not find [means for] marriage exercise modesty (wa-līstaʿfif alladhīna lā yajidūna nikāḥan)}, there are two issues:

They differed on whom the address {and give them (wa-ʾātūhum)} is directed towards:

1. It is the master, who should remit a portion of the Kitābah wealth or give him a portion of what he has already taken from him. They differed on the amount: some gave the choice to the master, saying he must remit an amount that leads to self-sufficiency, which varies based on the abundance or scarcity of wealth. Others said he should remit a quarter of the wealth. ʿAṭāʾ ibn Al-Sāʾib narrated from Abū ʿAbd al-Raḥmān that he contracted Kitābah with a slave of his and remitted a quarter of his Kitābah amount, saying: ʿAlī used to command us to do this, saying it is the saying of Allah the Exalted: {And let those who do not find [means for] marriage exercise modesty until...} If he does not do so, then the seventh [of the wealth is due]. This is based on what is narrated from Ibn ʿUmar, may Allah be pleased with him, that he contracted Kitābah with a slave for thirty-five thousand and remitted five thousand. It is narrated that ʿUmar contracted Kitābah with a slave, and when the slave brought the first installment, ʿUmar told him: "Go and use this to help pay your Kitābah wealth." The mukatab replied: "If you left it until the last installment?" ʿUmar said: "I fear you might not reach that time," and then recited this verse. Ibn ʿUmar used to delay the payment until the last installment for fear that the slave might fail.
2. It refers to their share which Allah designated for them from the Ṣadaqāt (charities) in His saying: {And in the necks [of slaves] (wa-fī al-riqāb)}. Under this view, the address is to others than the masters, which is the view of Al-Ḥasan, Al-Nakhaʿī, and ʿAṭāʾ's narration from Ibn ʿAbbās. They agreed that it is not permissible for a master to give his obligatory Ṣadaqah to his own mukatab.
3. This is a command from Allah the Exalted to the masters and the people to assist the mukatab in his Kitābah with what they can. This is the view of Al-Kalbī, ʿIkrimah, Al-Muqātil, and Al-Nakhaʿī. The Prophet, peace and blessings be upon him, said: "Whoever helps a mukatab to free his neck, Allah will shade him in the shade of His Throne." It is narrated that a man asked the Prophet, peace and blessings be upon him, "Teach me a deed that admits me to Paradise." He said: "If I have shortened the speech, I have magnified the issue: Free a soul (aʿtiq al-nasmata) and ransom a neck (fakku al-riqabata)." The man asked: "Are they not the same?" He replied: "No. Freeing a soul is when you single-handedly free it. Ransoming a neck is when you assist in its price." They supported this view with several points:
   • It is a command to give from the wealth of Allah, and what is attributed to Him in this manner is what is meant for Ṣadaqah and spending in acts of worship.
   • His saying: {from His bounty, and those who seek Kitābah} refers to wealth that the owner has rightfully possessed and is commanded to spend some of it. The wealth of Kitābah is not a valid debt because it is owed by his slave, and the master does not establish a valid debt over his slave.
   • What Allah gives him is what comes into his possession and he can dispose of. What is remitted immediately after the contract does not come under his ownership, so it does not deserve the description of being from the wealth of Allah that He gave him.

If it is objected that two points undermine the validity of this interpretation:

1. How is it lawful for his master, if he is wealthy, to take from the wealth of Ṣadaqah?
2. The saying {and give them (wa-ʾātūhum)} is connected to {so manumit them (fakātibūhum)}, so the addressee in both places must be the same. Under this interpretation, the addressee in the first part is the masters, and in the second part, the rest of the Muslims.

Reply to Objection 1: That Ṣadaqah becomes lawful for the master. Similarly, if the Ṣadaqah is not fully paid across all installments and he is unable to pay the remainder, what the master took is lawful for him because he did not take it due to the Ṣadaqah but due to the Kitābah contract, like one who buys Ṣadaqah from the poor or inherits it from them. This is supported by the Prophet's saying regarding Barīrah: "It is Ṣadaqah for her, and a gift for us."

Reply to Objection 2: The address can be to one group, then connected with the same wording to address others, like His saying: {And when you divorce women...} (Al-Baqarah: 231), where the address is to the husbands, then He addresses the guardians by saying: {then do not prevent them}. And His saying: {They are innocent of what they say}, where the speakers are not the innocent ones. Similarly here: He told the masters {so manumit them} and told others {and give them}, or He addressed both groups.

Al-Shāfiʿī, may Allah have mercy on him, said that the master must give the mukatab (i.e., remit a portion of the Kitābah wealth or give him a portion of what he has already taken). Mālik, Abū Ḥanīfah, and their companions said it is recommended but not obligatory.

• Argument of Al-Shāfiʿī, may Allah have mercy on him: The apparent meaning of His saying: {And let those who do not find [means for] marriage exercise modesty until...}, and a command implies obligation. It is objected: If {so manumit them} and {and give them} are both commands in one context, why is the first considered recommendation and the second obligation? Also, it is established that {and give them} is not addressed specifically to the masters but to all Muslims.
• Argument of Abū Ḥanīfah, may Allah have mercy on him (based on Sunnah and Analogy):
  • Sunnah: It is narrated by ʿAmr ibn Shuʿayb from his father from his grandfather that the Prophet, peace and blessings be upon him, said: "Any slave who contracts Kitābah for one hundred ūqiyyah and pays all but ten awāqī, he is a slave." If the remittance were obligatory, the amount equivalent to the remittance would have been dropped for him. Also, ʿUrwah narrated from ʿĀʾishah, may Allah be pleased with her, that Barīrah came to her and said: "O ʿĀʾishah, I contracted Kitābah with my family for nine ūqiyyah, one ūqiyyah each year, but I became unable and had not paid anything of my Kitābah." ʿĀʾishah said: "Return to your family. If they wish, I will pay it all for you, and your walāʾ will be mine." They refused. She mentioned this to the Prophet, peace and blessings be upon him, who said: "Do not let that prevent you from buying her and freeing her, for the walāʾ belongs only to the one who frees her." The evidence is that she had not paid anything of her Kitābah, and ʿĀʾishah wanted to pay the entire amount for her and mentioned it to the Messenger of Allah, who did not disapprove of her nor say that she was entitled to have a portion of her Kitābah remitted. Thus, our view is established.
  • Analogy (Qiyās): In two ways:
    1. If the giving were obligatory, its obligation would be tied to the contract, meaning the contract would necessitate it and simultaneously nullify it, which is impossible due to the contradiction between nullification and necessity.
    2. If the remittance were obligatory, the master would not need to remit; rather, the entitled portion would be dropped, like if someone owes another a debt, and then the latter owes the former an equal amount, it becomes set-off. If this were the case, the amount of giving would either have to be known or unknown. If known, the Kitābah must be for two thousand, and he is freed if he pays three thousand. But the Kitābah is four thousand, which is void because fulfillment of the entire amount is conditional, so he is not freed by fulfilling part of it. Furthermore, the Prophet, peace and blessings be upon him, said: "The mukatab is a slave as long as a single dirham remains owed." If the amount were unknown, the Kitābah itself would become unknown because the remainder after remittance is unknown, making it like one who contracts Kitābah with his slave for one thousand dirhams minus something, which is impermissible. And Allah knows best.

The Tenth Ruling: Coercion into Adultery (Zinā)

His saying, the Exalted: {And do not compel your slave girls to prostitution if they desire chastity, seeking the transient goods of the worldly life. And whoever compels them, then indeed, Allah is, after their compulsion, Forgiving and Merciful.}

Know that when the Almighty explained what is required regarding the marriage and Kitābah of slaves, He followed it by prohibiting the coercion of slave girls into immorality. Herein lie several issues:

They differed on the reason for its revelation in several ways:

1. ʿAbdullāh ibn Ubayy, the hypocrite, had six slave girls—Muʿādhadhah, Musaykah, Umaymah, ʿUmrah, Arwā, and Qutaylah—whom he forced into prostitution and charged them fees. Two of them complained to the Messenger of Allah, peace and blessings be upon him, and the verse was revealed.
2. ʿAbdullāh ibn Ubayy imprisoned a man. The captive desired one of ʿAbdullāh's slave girls, who was a Muslim. The slave girl refused because of her Islam, and Ibn Ubayy coerced her, hoping she would become pregnant by the captive so he could demand ransom for his child. Then the verse was revealed.
3. Abū Ṣāliḥ narrated from Ibn ʿAbbās, may Allah be pleased with him: ʿAbdullāh ibn Ubayy came to the Messenger of Allah, peace and blessings be upon him, with one of the most beautiful women, named Muʿādhadhah, and said: "O Messenger of Allah, this one belongs to the orphans of so-and-so. Shall we not command her to commit zinā so they may benefit from her earnings?" The Prophet, peace and blessings be upon him, said: "No." He repeated the statement, and the verse was revealed. Jābir ibn ʿAbdullāh said: "A slave girl belonging to a certain man came and said: 'My master forces me into prostitution,' and the verse was revealed."

Coercion (ikrāh) only occurs when there is a threat involving the loss of life. Minor fear does not render her coerced. Thus, the state of coercion into zinā is like the state of coercion into uttering the word of disbelief, even though this verse is specific to slave girls; the ruling is the same for free women.

The Arabs use fatā for a male slave and fatāh for a female slave. Allah the Exalted says: {But when they passed beyond it, he said to his youth (li-fatāh)} (Al-Kahf: 62), and {she tempted her youth (tarāwadu fatāhā)} (Yūsuf: 30). He also says: {And whoever of those whom your right hands possess marries believing women...} (An-Nisāʾ: 25). And in the Ḥadīth: "Let one of you say fatāy (my youth) and fatātī (my young woman) and not say ʿabdī (my slave) and amatī (my slave girl)."

Baghāʾ means zinā. It is said: baghā, yabghī, baghāʾ, so she is a baghiyy (fornicatress).

Our position is that the particle in (if) conditions the non-existence of a ruling upon the non-existence of the condition. The evidence is the agreement of linguists that the particle in is for conditionality, and their agreement that a condition is that the ruling ceases when the condition ceases. The combination of these two textual premises necessitates the ruling that what is conditioned by in ceases when the condition ceases.

The opponent used this verse as evidence, arguing that the Almighty conditioned the prohibition of coercion into prostitution upon her desire for chastity (taḥaṣṣun) using the particle in. If our statement were true, it would imply that the prohibition of coercion into zinā ceases if the desire for chastity is absent. This is false, because whether the desire for chastity is present or absent, the prohibition of coercion into zinā remains established.

Reply: There is no dispute that the apparent meaning of the verse implies that coercion into zinā is permissible when the desire for chastity is absent. However, this apparent meaning is invalidated because it is inherently impossible: when the desire for chastity is absent in her case, she is not coerced into zinā. And the state of her not being coerced into zinā makes coercion into zinā impossible, so it is impossible due to its inherent impossibility.

Some scholars offered another reply: The condition of coercion usually occurs only when there is a desire for chastity. Language addressing the usual case does not carry the implication of the conditional (i.e., the mafhūm al-khiṭāb). Just as divorce for compensation (khulʿ) is permissible even outside the state of marital discord, but since khulʿ usually occurs during discord, the verse {And if you fear that they will not uphold the limits of Allah, then there is no blame upon them for what she redeems herself with} (Al-Baqarah: 229) does not imply that it is only permissible during discord. Similarly here, the verse addresses the usual case.

A third reply is that the meaning is: "if they desire chastity," because the incident that occasioned the revelation involved this, as narrated that ʿAbdullāh ibn Ubayy's slave girl embraced Islam and refused him, seeking chastity, so he coerced her, and the verse was revealed in conformity with that. This is analogous to His saying: {And if you are in doubt about what We have sent down to Our Servant} (Al-Baqarah: 23), meaning: And when you are in doubt.

Since the Almighty prohibited coercing them into zinā, this implies that He permits coercing them into marriage. Thus, she cannot refuse her master if he marries her off; rather, he has the right to coerce her into that. This implication is derived from the dalīl al-khiṭāb (implication of the discourse).

As for His saying: {if they desire chastity (in aradna taḥaṣṣunan)}, meaning they seek modesty. {seeking the transient goods of the worldly life (li-tabtaghū ʿaraḍa al-ḥayāh al-dunyā)}, meaning their earnings and their children.

As for His saying: {And whoever compels them, then indeed, Allah is, after their compulsion, Forgiving and Merciful (wa-man yukrihunnna fa-inna Allāha min baʿdi ikrāhihinna ghafūrun raḥīm)}, know that the verse does not specify whether Allah is Forgiving and Merciful to the coerced or the coercer. Therefore, they mentioned two views:

1. Allah is Forgiving and Merciful to them (the slave girls), because coercion removes sin and punishment, as coercion is an excuse for the coerced. As for the coercer, he has no excuse for what he did.
2. It means Allah is Forgiving and Merciful to the coercer, provided he repents. This view is weak because, under the first interpretation, there is no need for this implied meaning, whereas under the second interpretation, it is necessary.

7. {And indeed, We have sent down to you clear verses, and an example from those who passed away before you, and an admonition for the righteous.}