Ties before and after manumission
Slaves under a contract of manumission (mukātabūn) according to the Andalusi notarial manuals (10th-12th Centuries)
Résumé
This contribution analyses the models of contractual manumission (kitāba) in Andalusi notarial manuals between the 4thH. / 10th CE. and the 6th H. / 12th CE. centuries. These documents establish the way in which owners could reach an agreement with their slaves to free them with the condition of subsequently paying for their release in instalments. This topic has been partially studied in the Mālikī legal doctrine, but there are still no contributions on their practise. In al-Andalus there is no archival documentation for this period, and notarial models provide an approximate image of the legal procedures in their practical register. They moreover provide interesting information on social relations and family and legal links that brought individuals together.
Entrées d’index
Keywords : slavery, Mālikī law, notarial forms, kutub al-wathā’iq, contractual manumission, kitāba, mukātab, freed slaves, clientele, walā’, Muslim family
Note de l’auteur
This contribution is possible thanks to the Research Project “Filología árabe: análisis de textos para el estudio del mundo araboislámico occidental” (Arabic Philology: text analysis for the study of the Western Arab and Islamic World) (CSIC 201810E019), and the Research Project “Género, familia y esclavitud. La esclavitud y el estatus legal en la estructuración de las "familias musulmanas" (ss. VIII-XII) (Gender, Family and Slavery. Slavery and legal Status in the structuring of Muslim Families, 8th-14th Centuries)” (PID2019-110663RB-100) financed by the Ministry of Science (Spain).
Texte intégral
Introduction. Regulating slavery in Muslim jurisprudence
1Recent research on slavery in the premodern Islamic world enables some rewriting of social and economic history. Several studies show that slaves were fundamental members of Muslim families and that slavery should be considered when analysing relationships established between individuals.
2As in any other legal system, Muslim jurisprudence regulated the relationship between people both in the private and public spheres. Moreover, the former stands out for attending to private and intimate matters. Diverse legal criteria have been identified to determine individuals’ rights and obligations. They include sex, legal age, religion, marital status and, of course, the state of freedom, slavery or partial freedom.1 These conditioning factors are necessary to assemble the legal status of an individual, that is, the legal personality that results in rights and obligations. In order to do so, jurists establish a hierarchy of different categories that varies between legal factors. Both sex2 and freedom/slavery are defining components. On the other hand, and despite being a religious legal system, religion is usually one of the last factors in this prioritisation.
3 The legal construction of an individual’s status involves a noteworthy ideal component that derives from the social perception of identities. Societies perceive identities with the following additional subjective factors: race, social class to which the individual belongs – usually based on profession and purchasing power –, and public behaviour or charisma.3 These factors are rarely included in jurisprudence, despite their close link to relevant legal concepts such as public recognition of probity; morality and integrity in actions.
4On the other hand, no individual has a unique identity or legal personality. We all hold diverse and multiple identities in different hierarchies. Nor are identities static and stable; they vary in time and in our relationships with other individuals. Furthermore, societies have a subjective perception of identities and these perceptions – which are numerous – contribute to the formation of different societies. Jurists are not alien to the time and space in which they live. Their regulations and interpretations take into account well known identities and differ depending on the legal framework involved. As stated, legal practise suggests some of their perceptions and prejudice to a greater extent than is possible to ascertain from legal theory.
5Likewise, it is important to mention the factor of social mobility. Historiography on the medieval period has repeatedly asserted that individuals died in the same social class in which they were born. Although anachronistic criteria from modern societies should not be applied, it is true that changes in social class were more frequent than what has been asserted. This is due to several reasons: first, continued armed conflict and multiple frontier territories – sometimes internal frontiers – allowed people to improve their situation (enriching themselves from looting or from the distribution of war booty, escaping from an uncomfortable or unfair situation), or worsen it (imprisonment or impoverishment). Second, clientele or patronage (walā’)4 largely influenced the creation of new family structures and social relationships. Through clientele, freed slaves maintained a relationship of dependence with the patron after liberation. Patrons had the right to inherit from their freed slaves, who had a continued relationship with the families to whom they rendered obeisance and loyalty. Clientele was not an exceptional phenomenon; it was very extensive. It originated from two different forms that are extensively documented: conversion to Islam and freedom following manumission.5 Both forms of clientele have been partially studied, although it is necessary to deepen the analysis.6
6Other institutionalised and legally regulated clientele relationships existed as well as these, although they had other names. Among them we should note the slave-owner relationship through a manumission contract (kitāba) which implied paying for freedom in instalments until its achievement through debt cancellation. This is a relationship that was established prior to liberation because, in order to accept this contract, the slave had to have an independent job and sufficient means to cover payments. In addition, another factor provides important clues to characterise this relationship: the fact that the doctrine considers that several members of the same family are included in the contract. These individuals should pay jointly or through the pater familias to be freed at the same time. It is a complex legal contract that must have resulted in numerous incidents. This is why it receives extreme attention from religious scholars. Two issues are inferred from this: first, that there is a rich legal casuistic specific to kitāba; second, that numerous legal acts specify the action of a mukātab/a. This legal doctrine is essential to trace social history, as it provides details of both the owner-slave mukātab and the links between a family group under the same contract.
7In this chapter I analyse the manumission contracts preserved in the Andalusi notarial manuals from the 4th/10th and the 6th/11th centuries,7 from Cordoba scholar Ibn al-ʿAṭṭār (d. 399/1008),8 Toledo scholar Ibn Mugīth (d. 459/1067),9 Granada scholar Ibn al-Ḥājj al-Garnāṭī (d. 579/1183),10 and Algeciras scholar Al-Jazīrī (d. 585/1189).11 The richness of these texts for analysing social history has been highlighted on numerous occasions, as these are fundamental documents to understand legal practices in the pre-modern Islamic west.12 The preserved notarial manuals are important given the loss of archival documentation that could have occurred in these centuries. These documents are unique in showing how contracts were made. Although these models are repeated between authors and between regions, some regional differences are noted. Moreover, the analysis shows that that notaries select the script according to the importance they give to a particular legal act over others, which is a valuable finding.
8Finally, the analysis presented in this chapter should be approached together with previous studies of legal doctrine on this topic,13 although that is only mentioned briefly here given the space that those authors of notarial manuals dedicate to it.
Andalusi notarial manuals and slaves subject to manumission contracts
9 As numerous studies have shown, the jurisprudence of the four main legal schools establishes several possibilities for freeing a slave. This legal doctrine responds to a Qur’anic recommendation of manumitting slaves whenever possible, which is considered a good deed, and treating them humanely.14 It delves into various issues, among them: establishing ways of freeing a slave; manumission circumstances – types of slaves, owner(s)-slave relations, the role of other factors in manumission (religion, underage status or other legal incapacity, debts incurred, the owner’s lack of solvency, etc.); and rights and obligations of both parties before, during, and after manumission. The latter is relevant because, as aforementioned, owner-slave relationships do not cease after manumission and sometimes are extended for generations. Historiography of premoderm Islamic societies has not sufficiently focused on studying the freed (and their descendants) and their clientele relations with their former owner and his family, as few studies have been carried out on the subject.
10Amongst the most frequent forms of manumission covered in Islamic legal literature we should point to the following: the liberation of a slave (ʿitq) as a result of the owner’s will; the promise of liberation after the owner’s death (tadbīr); the obligation of liberation of the concubine-mother (umm walad) after the owner’s death; manumission to redeem a mistake (kaffāra); and the establishment, through a contract, of a slave’s liberation through instalments (kitāba). Notarial manuals do not collect all of them; they only inform about the procedures that needed to be accompanied by a legal certifying document to avoid disputes and litigations. These are mainly permanent manumission, the certification of the mudabbar’s liberation, the certification of a deferred manumission, partial or total manumission of a slave with multiple owners, and everything related to the kitāba contracts that are the focus of this chapter.
11The following table includes the manumission acts covered in the manumission chapters of the notarial manuals analysed here in order of appearance (the ones related to contractual manumission are marked in bold):15
IBN AL-ʿAṬṬĀR | IBN MUGīTH | IBN AL-ḤĀJJ | AL-JAZīRī |
Contractual Manumission | Permanent Manumission | Manumission | Permanent Manumission |
Mukātab/a declares insolvency | Deferred Manumission | Posthumous Manumission | For a financial compensation |
Mukātab/a declares insolvency before authorities | Posthumous Manumission | Contractual Manumission | By purchase of goods |
Contractual Manumission of a Christian slave | Contractual Manumission | Manumission in which | |
Contractual Manumission of a tutor in the name of his ward | Record of the payment | Posthumous Manumission | |
Record of the payment of | Certificate of clientele | Contractual Manumission | |
Receipt of the payment of | Recognition of clientele | Mukātab/a declares | |
Contractual Manumission | Certificate of clientele | Mukātab/a declares | |
Manumission of the Mukātab/a through | Recognition of parenthood | Selling of contractual manumission | |
Contractual Manumission | Manumission through | ||
Manumission from one | Declaring total perception of the | ||
Partial manumission | |||
Ending a slave’s manumission | |||
Permanent Manumission | |||
Purchase contract of a slave, | |||
Posthumous manumission | |||
Freeding with the total payment | |||
Manumission in which | |||
Deferred Manumission | |||
Deferred Manumission, with the | |||
Permanent Manumission |
12Some conclusions can be drawn from this table. The document that includes the longest chapter on manumission is, at the same time, the oldest; it belongs to Ibn al-ʿAṭṭār and dates back to the last years of the Caliphate of Cordoba. The casuistry it offers is not only larger, but it is also focused on particularly complex and, therefore, more controversial issues. This does not mean that jurists were no longer interested in following periods, but that they probably considered that a new document was not necessary given that Ibn al-ʿAṭṭār’s work continued being used and valid throughout the 5th/11th and 6th/12th centuries.
13On the other hand, Ibn al-ʿAṭṭār’s text does not include specific models of clientele, unlike Ibn Mugīth’s manual which devotes half of its chapter on manumission to this issue. Neither is it mentioned by Ibn al-Ḥājj al-Garnāṭī, although this is not surprising given the text is very short, a summary, as stated in its title. Al-Jazīrī pays attention to clientele, but he does so outside the chapter on manumission, in the space devoted to succession and inheritance, within the sections on parenthood recognition.16 Ultimately, the jurists from Toledo, Algeciras and Granada expand on issues that are not detailed by Ibn al-ʿAṭṭār, namely clientele.
14The entirety of notarial manuals devotes ample space to contractual manumission. From Ibn al-ʿAṭṭār’s twenty manumission models, half refer directly to slaves subject to a manumission contract in instalments. Another one presents the case where a mukātaba is a party in the contract. This proportion is similar in Ibn Mugīth, whose chapter includes nine models, five manumission records, and two contractual manumissions. In the case of Al-Jazīrī, the chapter presents eleven models, from which six are on contractual manumission.
15The position of notarial kitāba documents varies between manuals. Ibn al-ʿAṭṭār presents these contracts in the first place, while all other authors, including Ibn al-Ḥājj al-Garnāṭī, position records related to slaves that are subject to a manumission contract at the end. This could be related to the first author’s interest, as aforementioned, on focusing on those legal acts that could give place to greater conflict given their complexity.
Records of kitāba
16 All liberations of slaves start with the owner’s will and are his/her act. However, in order to establish a manumission contract, the slave’s consent is required, unlike what happens in other manumissions. The owner cannot force his slave to accept that obligation, in the same way as the slave, once the contract is accepted, cannot declare him/herself insolvent or unable to fulfill it without proof.
17Signing a kitāba contract turned a normal male slave (ʿabd or mamlūk) or female slave (ama or jāriya) into a mukātab or mukātaba. This does not only imply a change of name but a change in their legal status that will affect other legal acts such as marriage, divorce, sales, etc. Both the legal doctrine and the notarial documents take into account this new legal personality to establish a new hierarchy of rights and obligations. In the works of furūʿ al-fiqh contractual slaves are frequently mentioned, particularly in relation to the prohibitions that apply to them; for instance, they cannot be sold and no means of hindering the payment of instalments in their contract can be posed. In the case of notarial models, they rarely appear outside the records of their liberation contracts. This can be precisely due to the fact that their status does not enable them to be part of some legal acts such as sales.17
18Hereafter, we analyse payment terms required in manumission contracts through an analysis of a model, as well as the type of deeds that Andalusi notaries included in this period.
The model of writing in kitāba
19In order to know what the typical contract for manumission in instalments looked like, we should refer directly to Arabic sources. We choose the first model included in Ibn al-ʿAṭṭār’s documents because it includes all relevant aspects related to the new owner-slave links established:
So and so, son of so and so, manumits through a contract his slave so and so the slave page (al-fatā al-ṣaqlabī)18, or so and so the Franc (al-ifrānjī), or so and so the Galician (al-jillīqī), or the merchant, or the barber, or the embroiderer, or the artisan, whose description is this, in exchange of so many dinars of dirhams arbāʿīnīn19 in the current mint in Córdoba on the day of this writing, which should be charged to [the slave], in this amount of instalments during these months, counting from this month of that year. The mukātab pays them on each stipulated date for instalments in this manumission contract. These will come to an end at the end of each month, as corresponds to these [dinars]. During this manumission contract, (the mukātab) should give his/her owners an alive and healthy ram in each Feast of Sacrifice, be it white, full-horned, or neutered, with full dentition, strong making, wooly, fat and with black eyes, as established by the owner. The same should happen at each end of Ramadan festivities. All these clauses are mentioned and described. If you mention the ram’s value, the contract will be more precise, allowing for skipping the description.
When the aforementioned instalments come to an end, the mukātab has paid them in their entirety to so and so, and he, in turn, has recognised having received them or (the slave) has presented testimonial evidence of their payment, – the owner has to be believed, without the need for oaths, in case the legal claim to the clauses of the manumission contract –, so and so will become a free Muslim with rights and obligations. No one will have any right on him, except for clientele (walā’), his clientele belonging to his owner so and so and his heir, as stipulated in the sunna of the God sent, God blessed, on clientele.
The mukātab could not travel far as this could impede him from carrying out the payments, getting married, donating part of his goods, or doing anything that went against meeting his promise of compliance, without previous authorisation of the owner.
(The witnesses) required by mukātib so and so, who know him personally and by his name, and having heard from him, (knowing that) he is healthy and in full capacity to act, testify that what is included in this document is true. They testify, as also required by the described mukātab, that this so and so has approved the manumission contract and has declared being slave of his owner until (the moment) in which this manumission contract was written, on this month of that year. This contract (kitāba) has two copies.
If the condition is that (he continues) at his service, this should be included stating that: “(the mukātab) should serve him all the years during a month, being at his disposal in business, or in any matter, or taking care of his lands,” or for the time mentioned, a day each week.20
20Ibn al-Ḥājj al-Garnāṭī summarises the deed in three lines: “The owner and the mukātab are named, described by category, colour and dentition/age (sinn). Instalments and quantities are fixed. When the last one is paid, he is freed and has no further obligation other than clientele. Witnesses testify for both parties, in the same way as in posthumous manumission”.21 One peculiarity that stands out in kitāba deeds and that does not appear in other manumission deeds is that witnesses also testified for the slave. In turn, he had to declare before a notary that he belonged to that owner.22 The fact that a slave needed witnesses results from the fact that, for the majority of Mālikī jurists, the owner could not force a slave to accept contractual manumission, with the exception of Ibn al-Qāsim, who considers it licit.23
21The second part of this deed is almost identical in Ibn Mugīth,24 although the first part is much richer in customs details in Ibn al-ʿAṭṭār. As in Ibn Mugīth, Al-Jazīrī leaves out examples of the types of slaves that can be subject to this contract, as well as the reference to gifts in the two greatest celebrations of the Muslim calendar.25
22Special attention was given by Ibn al-ʿAṭṭār to describing the possible slaves that could be subjected to a manumission contract. Moreover, the type of slaves he chose as examples is surprising, as they were very characteristic of his time. First, he refers to a slave of Slavic origin (ṣiqlabī), although this term was later used to refer both to white-skinned palatine slaves and eunuchs. Moreover, he mentions slaves from the North of the Iberian Peninsula, ‘Galicians’ or ‘Francs’, as the most numerous at the turn of the millennium in Cordoba. This was a result of the victorious captures of the Muslim troops against Christians. It would have been interesting if these authors had provided examples, as these probably would have been different from those provided by Ibn al-ʿAṭṭār in his manual.26
23Similarly, the Cordoban author introduced a form of payment from the slave to his owner that complements manumission instalments: gifts in grand festivities, both with animals for their slaughter or dresses (kiswa). Although it must have been a local custom, the jurist considered it an obligation in cases where this was specified in the contract. In the section on jurisprudence that follows the notarial model, he specified how this donation should be done. He stated that, if the mukātab had paid the total amount but still owed the gifts, he would not be freed until he handed them to the owner, as they were part of the total price of his liberation. Moreover, he argued that if he had paid the entirety agreed with the gifts, the owner should accept them. On the contrary, if he decided that he did not want to accept them at that given time, the slave would hand it to the authorities, who would pay the owner in the previously established instalments. In this last case, the mukātab would be freed when he handed the gifts to the authorities, and he would not have to wait for the owner to receive them, because the master decided not to accept it at the time.27 This custom must not have been frequent in the 5th/11th and 6th/12th centuries in Toledo, Algeciras and Granada, as the other forms do not mention it.
24The kitāba is a Qur’anic principle that no legal school questions (Qur’an XXIV, 33).28 Notaries did not question its origin in the section on jurisprudence; they only tried to explain the contents of the deed and determine the actions that slaves subjected to a manumission contract could carry out whilst the contract was in force. In this way, they tried to avoid conflict or misunderstandings that might later result in litigation. The main legal disquisitions are the following:
Establishing payments and their enforcement.
Contractual manumission required assigning a set term and payment times, which should be previously specified both in relation to the quantity and to the schedule of payments. The Mālikī doctrine allows for a unique liberation payment.29 Occasionally, that payment entailed a reduction in the total cost in the kitāba. Sources use the term kitāba, both referring to the contract itself and the quantity set for liberation.How to proceed when the mukātab dies before having paid all fees.
If the slave passed away before having been freed with the last payment, and he had free heirs, they could not inherit from him.30 In this case, the owner would inherit from the slave because the slave’s properties were not his own, and he was only entitled to its usufruct.
If the slave died and had children from a female slave for whom the manumission contract established that they be freed at the same time as he was, they would be liberated if they were able to pay the remaining instalments. If he had other free children as well as those, they would not inherit from him because he died as a slave, and the inheritance would only go to the slave children that could pay the remaining instalments. Free children did not inherit because if he had only had them, they would have had to pay his debt after his death.31 The cases presented by notaries show the complexity that could be reached within these individuals’ families. This would have been highly improbable for ‘normal slaves’ given their complete dependency on the owner and his family.The slave’s insolvency.
A mukātab could not declare himself insolvent if he had sufficient means to cover his liberation and this was publicly known. If this was not the case, the owner could not declare him insolvent and restore his status of ‘normal slave,’ even if this decision was deferred to the owner in the contract. It should be ‘the authorities the ones who declare him insolvent, notifying him and granting him a debt moratorium.’ A different case would be if he declared himself insolvent and this was true, as in this case, he would go back to being a slave, and he would lose his mukātab status.32 In this case, a specific notarial model is created,33 clearly reflecting that jurists want to avoid at all costs that a breach is done on the slave through an undue interruption of his manumission contract. Liberation is perceived as a sacred good and all possible means are employed for it to be effective.Who was responsible for the mukātab’s maintenance.
Another relevant issue when analysing family ties is the degree of independence of slaves subject to a manumission contract. All notaries took for granted that they had a paid profession, meaning that at a given moment and for unknown reasons, these slaves had started to work for a third party. As we can see in the chosen model, Ibn al-ʿAṭṭār specified some professions through examples: merchant, embroiderer or barber. The slave had to cover for his own food and clothes. Models do not specify what the agreement was for house expenses because both the following cases must have been frequent: the slave that lived in an independent place or the slave that lived in the owner’s family home. In this last case, the slave’s presence should not mean an extra expense for the family.What happened if the slave had an umm walad or was married and had children.
If the mukātab had children from an umm walad, he had to include them in the contract and cover all their expenses: food, clothes, and payment of the kitāba. He could not force them to work in order to help him cover these expenses because they would continue being the owner’s slaves until their liberation, this meaning that they would work for him and not for their father until their liberation day. As for the concubine-mother, the slave could only sell her in case of being on the verge of insolvency.34 Under different circumstances, selling a concubine-mother was not allowed on any account.
In the case that he got married, with the owner’s permission, to a free Muslim or Christian woman, and had children with her, these would be free because their mother is free. If he declared himself insolvent and could not meet the contractual requirements, no one would be obliged to cover for the children’s maintenance, and they would be ‘poor Muslims’.35 This is interesting from a social point of view, because it shows that it was not unlikely that contractual slaves married free people due to their state of independence.36 Islamic jurisprudence allows the marriage of a free man or woman with a slave; however, it must not have been frequent with slaves of another status, for example, with ‘normal slaves’.
Another similar example is the one of a contractual slave that marries, with his owner’s permission, another contractual slave with a different owner. In this case, the slave did not have to maintain the children that he had with them, because these costs, as well as the possible liberation of the children, would depend on the mother.37 In turn, the mother had rights and obligations towards her owner, with whom she had signed the manumission contract, and will have no relation with her husband’s owner.Ability to travel.
A general principle sustained by Mālikī jurisprudence is that the slave could neither get married nor travel after the manumission contract had been established without the owner’s permission.38 This is particularly interesting for legal sources, as no slave had these rights without the owner’s consent.
In the case of marriage, the reasons are evident as this new circumstance could alter the fulfilment of the contract, resulting in a modification of the clauses. As for travelling, there is always the fear of escape. What is eye-catching is that models mention the opinion of Saḥnūn, who considered the mukātabūn’s legal travels. He considered that these travels were necessary in order to earn a living and, therefore, meet the requirements of their manumission contract. Justified travels, given their work as merchants or with a third party, were characteristic of their independence and prove the social recognition and trust that must have been given to them.
Types of deeds in kitāba: different legal reasons
25In order to comply with the legal principles that underpin the manumission in contract instalments, notaries included models that must have been the most frequently used. As aforementioned, the manual that contains the largest number of models is that of Ibn al-ʿAṭṭār. It includes the basic model, analysed in the previous section; a model for declaring the mukātab’s insolvency and another one to do so before authorities; a manumission contract model for a Christian slave; a manumission model for a tutored slave; a model of payment through instalments, a model of receipt of the final instalment; a manumission contract model for slaves with more than one owner; a manumission model for the complete payment of kitāba; and a manumission contract model for two slaves at the same time. Ibn Mugīth does not add anything new, as he only includes the model act and a short model for the payment through instalments. Al-Jazīrī agrees with some of Ibn al-ʿAṭṭār’s acts and includes a model for a sales contract of a kitāba.39 It is, however, not a new scenario as the possibility of an owner selling the kitāba to a third party is presented in Ibn al-ʿAṭṭār’s model for the liberation of slaves through complete payment of instalments.40 The difference lies in the fact that the latter did not approach this as a sale but as the owner’s voluntary act. It is possible that it was a good action, as the slave was freed after paying and the first owner had the right, as in all other cases, to the clientele of the freed man.
26 The majority of acts represent the way to carry out the actions described in section 3.2. Special attention should be made to the fact that there is a model exclusive to the manumission of a Christian slave.41 The model does not differ from that of a Muslim slave, but its jurisprudence seems to explain its inclusion indirectly. The reason might be the possible doubts on a Christian freed man’s clientele, as inheritance and relations in these cases are established in the sunna. Ibn al-ʿAṭṭār states that:
If the mukātab deceases before paying the kitāba, all his goods will be inherited by the owner. If (s)he has paid the kitāba and gained freedom but deceases after being Christian, his clientele will belong to the Muslim community, the owner having no right to inherit for patronage. If (s)he converted to Islam, his/her clientele belongs to the owner or to his heirs if the owner died. Moreover, if any of the Christian mukātab’s children convert to Islam after the Christian’s decease, his/her clientele will belong to the owner or his heirs, if the emancipator was Muslim.42
27This text shows how the clientele relationship was exclusive to Muslims. The manumission of slaves who had not previously converted to Islam must not have been frequent, among other reasons due to the loss of the owner’s clientele after liberation. However, it is reasonable that this model is not included in subsequent models as the ownership and manumission of Christian slaves – the most abundant in the 6th/10th centuries – must have been less frequent later.
28The links between those that had been freed and their former owners, which were probably also emotional, are the reason that led notaries to insist on duplicating all documents, as both parties had to keep authorised proof of the legal acts carried out.
Conclusions
29The mukātabūn and mukātabāt were semi-independent workers from their owners and family. They had a paid job that was sufficient for their maintenance and to pay for their freedom in instalments. In collective manumission contracts, at least one of the signatories had to take on this responsibility in everyone’s name.
30Although both male and female slaves signed contracts of these characteristics, it must have been more frequent in the case of men. I consider that it must have been so for two reasons: on the one hand, women enjoyed much lesser mobility outside the home; on the other, the work they carried out was useful for families, both for their domestic labour and for their role as concubines. A family had to be very wealthy in order to provide jobs for male slaves or have a life-style linked to this type of work such as, for example, that of an agriculture landowner. Otherwise, it was more profitable to make them work outside the home. Children that were born into a family of slaves were slaves, so they could be surplus without the need to pay for them in the market. It is true that sources frequently mention the mukātabāt, but they are not clear if a slave had established the contract for themselves or because they were included in a collective one. In any case, the rights to establish a kitāba and obligations attached to it were identical for male and female slaves.
31As well as their ability to physically move away from the family, sources show their ability to form complex families, with freed and slave relatives. In the same way, they were on occasions presented as owners of slaves who were themselves, slaves. For example, a mukātab’s concubine-mother is mentioned, and this is only possible if she were a slave.
32Their economic independence and their potential to be freed in the medium-term must have conferred a very different social identity to that of ‘normal slaves’. In the same way as concubine-mothers of free men, whose status and role in the family ended up being very similar to that of the legitimate wife, slaves subject to a manumission contract must have been perceived as ‘vassals' and their families as ‘vassals’ of an economically and socially superior free family. This can explain that they were allowed to travel, getting away from their owner’s supervision, or that documents mention their own complex family relations separate to those of their owner’s family.
33Mālikī jurisprudence is particularly focused on taking these contracts to a good end. This is a characteristic common to all manumissions; that jurists protect with means that do not allow for the owner’s misuse or that they are used as quibbling to obtain benefits. However, in the case of mukātabūn slaves, there must have been another reason: the respect for slaves whose social situation was now very similar to that of free people.
Bibliographie
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10.1163/ej.9789004155671.i-252 :Notes de bas de page
1 Several studies have analysed the intermediary state of a potentially free slave or of the slave whose status is conditioned: De la Puente, 2000; Oẞwald calls them “Hybridsklaven” (hybrid slaves), see Oẞwald, 2017), pp. 207-211.
2 Spectorsky, 2012.
3 De la Puente, 2003, especially, “Introducción”, pp. 7-12.
4 Forand, 1971; Crone, 1991.
5 Crone, 1987; Bernards and Nawas, 2005; See the jurisprudence on walā’ in Cilardo, 1994, pp. 448-506.
6 In the case of Al-Andalus, see the work of Fierro, 1999; Fierro, 1995; and Fierro, 2008; Meouak, 1999.
7 Ibn al-ʿAṭṭār, 1983, (Chapter 17) pp. 238-289; Ibn Mugīth, 1994, (Chapter 5) pp. 351-360; Ibn al-Ḥājj al-Garnāṭī, 1987, pp. 44-45; and Al-Jazīrī, 1998, pp. 427-441. In this same period, the work of Al-Buntī (d. 462/1070), Al-Wathā’iq wal-masā’il al-majmūʿa, for which fragments of the manuscript are preserved. The sections that have been edited do not contain models related to manumission, see Aguirre Sádaba, 2012.
8 Chalmeta, 2009.
9 Aguirre Sádaba, 2006.
10 Carmona González, 2012.
11 Ferreras Sánchez, 2012.
12 On gender, Tyan, 1959; Gronke, 1984. On Andalusi models, López Ortiz, 1926; Zomeño, 2007; and Rodríguez Gómez, 2012.
13 The first author that paid attention to the mukātab was Brockopp, 2000, Chapter 4 “Two Types of Slaves: The Mukātab and the Umm Walad”, pp. 162-205; also see Oẞwald, 2017, pp. 217-232; De la Puente, 2021, pp. 73-92.
14 The self-rescue of slaves is not an exclusive feature of Islamic law, but exists in other legal systems under various forms: for example, about the talla of the Crown of Aragon, see Hernando, 2003, pp. 203-223, and Albacete Gascon, 2008, pp. 465-484.
15 Ibn al-ʿAṭṭār and Ibn Mugīth’s chapters on manumission have been translated into Spanish, but not those of Ibn al-Ḥājj al-Garnāṭī y al-Jazīrī. See Ibn al-ʿAṭṭār, 2000, pp. 437-484 (chapter 17, numbers 91-111); and Aguirre Sádaba, 2001, pp. 34-48. Chalmeta briefly analyses the content of these notary models, pp. 429-436; whilst Aguirre Sádaba studies it in the mentioned article. Also see Vila, 1931.
16 Al-Maqṣad al-maḥmūd, “Deed of clientele” and “deed of clientele based on public and notorious testimony” on p. 373; and “deed of recognition of clientele or kinship,” on pp. 374-375.
17 This includes, for example, marriage of a mukātab, Ibn al-ʿAṭṭār, Wathā’iq, pp. 14-7.
18 In the translation into Spanish (Formulario notarial, p. 437) it states “el joven esclavo” (the young slave), but it refers to a particular type of slave, as normally used in the citadel.
19 The term under discussion seems to refer to a 36 gram coin, legal tender in 10th Century Cordoba, see Aguirre Sádaba, 2001, p. 40, note 46.
20 Ibn al-ʿAṭṭār, 1983, pp. 238-239.The second part of this document is almost identical in Ibn Mugīth, 1994; pp. 354-5. However, the first part provides more details on customs in Ibn al-ʿAṭṭār.
21 Ibn al-Ḥājj al-Garnāṭī, 1987, p. 45.
22 Aguirre Sádaba, 2001, p. 32.
23 Ibn Mugīth, 1994; pp. 355-356.
24 Ibn Mugīth, 1994, pp. 354-355.
25 Al-Jazīrī, 1998, pp. 434-435.
26 De la Puente, 2017.
27 Ibn al-ʿAṭṭār, 1983, pp. 239-240. Al-Jazīrī offers this possibility of the authority’s intermediation in case of the payment in instalments, if the slave wants to pay but the owner prefers to not accept, Al-Maqṣad al-maḥmūd, p. 435.
28 Ibn Mugīth, 1994; p. 355; Al-Jazīrī, 1998, p. 435. On the exegesis of the Qur’anic verse 24:33 and the origin of the legal kitāba or mukātaba see Harvey, 2019.
29 Ibn Mugīth, 1994; p. 355.
30 Ibn al-ʿAṭṭār, 1983, p. 240; Al-Jazīrī, 1998, p. 436.
31 Ibn al-ʿAṭṭār, 1983, p. 240; Al-Jazīrī, 1998, p. 436.
32 Ibn al-ʿAṭṭār, 1983, p. 241; Ibn Mugīth, 1994; pp. 355-356; Al-Jazīrī, 1998, p. 436.
33 Ibn al-ʿAṭṭār, 1983, pp. 241-242; Al-Jazīrī, 1998, pp. 438-439. Both models contain two acts: one where (s)he declares him/herself insolvent and another one where (s)he does so before authorities.
34 Ibn al-ʿAṭṭār, 1983, p.240.
35 Ibn al-ʿAṭṭār, 1983, pp. 240-241; Al-Jazīrī, 1998, p. 435.
36 De la Puente, 1995, pp. 313-315. Sah̟nūn specified that a free man or woman could not marry their own mukātab/a until they were free, p. 315. The idea that the owners cannot marry their slave or concubine unless they are previously freed prevails.
37 Ibn al-ʿAṭṭār, 1983, p. 241; Al-Jazīrī, 1998, p. 435.
38 Ibn al-ʿAṭṭār, 1983, p. 239; Al-Jazīrī, 1998, p. 435; Aguirre Sádaba, 2001, p. 42, note 56.
39 Al-Jazīrī, 1998, p. 440.
40 Ibn al-ʿAṭṭār, 1983, p. 257.
41 Ibn al-ʿAṭṭār, 1983, pp. 247-248.
42 Ibn al-ʿAṭṭār, 1983, p. 248.
Auteur
-
Cristina De la Puente
Instituto de Lenguas y Culturas del Mediterráneo y Oriente Próximo del CSIC, cristina.delapuente@cchs.csic.es
Le texte seul est utilisable sous licence Licence OpenEdition Books. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.
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