The case of the free woman who was enslaved

Umayyad Cordoba

Years 300/912-309/921 and 312/924-314/926, when Aslam b. ʽAbd al-ʽAzīz was the judge in Cordoba.

The source is literary (biographical dictionary of Cordoban judges) and based on oral information.

A non Arab who was a former rebel lord had submitted to ʽAbd al-Raḥmān III and now lived in Cordoba. He had in his possession a slave who claimed to be a free Muslim woman and sought the protection of the judge. The Cordoban emir tried to have the judge not look into her case on the basis that the pact established with the former rebel involved not meddling in his affairs. The fact that the judge is known to have been dismissed may indicate that his resistance to the emir’s wishes made him redundant.

Enslavement of free Muslim men and women – illegal in Islamic law – was not uncommon in periods of war and rebellion. If the enslavement had taken place in a territory where the rebel lord had apostatized from Islam, the legal requirements of Islamic law would not have been considered to be valid. This may have been the case of the Muslim free woman if she had been enslaved in lands under Ḥafṣūnid rule during the period Ibn Ḥafṣūn apostatized from Islam.

 The source

The source for this case is a biographical dictionary devoted to the Cordoban judges who were active from the period of the Muslim conquest (started in 92/711) to that of the Umayyad Cordoban caliph ʽAbd al-Raḥmān III (r. 300/912-350/961).

The author, Ibn Ḥārith al-Khushanī (d. 361/971), was born in Qayrawan, but left his homeland around 311 or 312/923-5 during the period of Fatimid rule and settled in al-Andalus where he composed many historical and legal works for the future caliph al-Hakam II (r. 350/961-366/976) who was a prince at the time.[1]

Al-Khushanī’s legal works include:

Kitāb al-futyā, ed. M. al-Majdūb, M. Abū l-Ajfān and ʽU. Battīkh, al-Khushanī. Uṣūl al-futyā fi l-fiqh ʽalā madhhab al-imām Mālik, Tunis: al-Dar al-ʽarabiyya li-l-kitāb, 1985. Reviews: M. Marín in Al-Qanṭara VII (1986), pp. 487-9.

– Kitāb fi l-ittifāq wa-l-ikhtilāf li-Mālik b. Anas wa-aṣḥābihi, still unpublished (there is a ms in Qayrawan).

Al-Khushanī’s historical works include:

Kitāb fī akhbār al-fuqahā wa-l-muhaddithīn, ed. M. L. Ávila and L. Molina, Madrid, 1992. Reviews: M. Fierro in Al-Qanṭara XIII (1992), pp. 607-9; P. Chalmeta in Anaquel de Estudios Arabes 4 (1993), pp. 203-6; M. ʽA. Makki in Anaquel de Estudios Arabes 5 (1994), pp. 139-66. Ed. Sālim Muṣṭafā al-Badrī, Beirut: Dar al-kutub al-ʽilmiyya, 1420/1999.

Kitāb/Takh al-quḍāt bi-Qurṭuba, ed. and transl. J. Ribera, Historia de los jueces de Córdoba, Madrid, 1914, with an introduction published in Disertaciones y Opúsculos I, pp. 385-416. Reviews: Revista del Centro de Estudios Históricos de Granada y su reino V (1915), p. 129; F. Gabrieli, “Qualche nota sul Kitāb al-quḍāt bi-Qurṭuba di al-Jušanī”, Al-Andalus VIII (1943), pp. 275-80. Ed. ʽIzzat al-ʽAṭṭār al-Ḥusaynī, Cairo: Mu’assasat al-Khanjī, 1373/1954 (with ʽUlamāʼ Ifrīqiya; it is based on the edition of J. Ribera). Reviews: E. Lévi-Provençal in Arabica I (1954), p. 357; MIDEO II (1955) p. 298. Ed. Ibr. al-Abyarī, 2nd ed., Cairo: Dār al-Kitāb al-Miṣrī/Beirut: Dār al-Kitāb al-Lubnānī, 1990 (al-Maktaba al-Andalusiyya, 6). Russian translation by K. Boĭko, Moscow, 1992.

abaqātʽulamāʼ Ifrīqiya, ed. and transl. Ben Cheneb, Publ. de la Fac. des Lettres d’Alger LII, Alger, 1916, 1921; repr. Beirut: Dār al-kitāb al-lubnānī, [198-]. Ed. ʽIzzat al-ʽAṭṭār al-Ḥusaynī, Cairo: Mu’assasat al-Khanjī, 1373/1954 (with Kitāb al-quḍāt bi-Qurṭuba ; it is based on the edition of M. Ben Cheneb). Ed. M. Zaynhum M. ʽAzab, Cairo: Madbulī, 1413/1993.

The text here translated and analyzed is found in Ibn Ḥārith al-Khushanī, Kitāb al-quḍāt bi-Qurṭuba, ed. and transl. J. Ribera, Historia de los jueces de Córdoba, Madrid, 1914, pp. 184-5 (Arabic text) and pp. 227-8 (Spanish translation), in the entry devoted to the judge Aslam b. ʽAbd al-ʽAzīz. The text is also found in ʽIyāḍ (d. 544/1149), Tartīb al-madārik li-maʽrifat aʽlām madhhab Mālik, 8 vols, Rabat, 1983, V, 198.

The context

The case here analyzed took place when the judge of Cordoba was Aslam b. ʽAbd al-ʽAzīz (d. 319/931), who had two turns of office: 300/912-309/921 and 312/924-314/926.[2] He belonged to a family of Umayyad clients who had been instrumental in helping the Umayyad prince ʽAbd al-Raḥmān I (r. 138/756-172/788) to establish himself as ruler in al-Andalus and had since then served the Umayyads in different capacities.[3]Aslam’s brother, Hāshim b. ʽAbd al-ʽAzīz, was a powerful vizier and military commander during the rule of the emir Muḥammad (r. 238/852-273/886) who fell in disgrace during the brief reign of al-Mundhir (r. 273/886-275/888) and was executed.[4] The conversion of Aslam’s ancestor to Islam had taken place in East, before the conquest of al-Andalus, and allegedly at the hands of ʽUthmān b. ʽAffān, which was considered to enhance the rank and the prestige of the family as they were ‘old Muslims’ against more recent converts.[5] Aslam thus belonged to the old Umayyad client elites who – although of non Arab origins in the distant past – took pride in their long history of service to the Umayyads and considered themselves to be superior to the new converts. This is shown in a number of anecdotes. When Aslam was in Egypt during his travel of studies, the famous Egyptian jurist Muḥammad b. ʽAbd Allāh b. ʽAbd al-Ḥakam reprimanded him for having visited a bath that had been confiscated from the Umayyads, with Aslam answering that the fact that it had belonged to the Umayyads made it his own, as he was their client. IbnʽAbd al-Ḥakam from then onwards showed his favouritism towards him as he was also the descendant of an Umayyad client. When Aslam was dismissed as a judge, the rumour was that a non Arab (ʽajamī) would be named in his place, with Aslam commenting that he thanked God that he was among those who said ‘there is no god but God’, thus implying that a non Arab judge was necessarily suspect in his religious beliefs.[6] Ibn Ḥārith al-Khushanī – who had Arab origins – praised Aslam as a judge for his exemplarity, his justice, his adherence to the law and his severity with those who departed from it.

Aslam was dismissed as judge in 314/926, the same year in which one of the most dangerous rebels against the Cordoban Umayyads, Sulaymān b. ʽUmar b. Ḥafṣūn, was killed and his body publicly exposed in one of the gates of the Cordoban palace. He was the son of ʽUmar b. Ḥafṣūn (d. 306/918), descendant of a local convert, who had rebelled during the times of the emir Muḥammad (r. 238/852-273/886) and from his fortress in Bobastro (in the mountains near Málaga) had managed to resist for a long time the Umayyad attempts at defeating him. ʽUmar b. Ḥafṣūn’s figure has been interpreted as representing those among the descendants of the old Visigothic nobility who had managed to preserve some territorial dominions and power after the Muslim conquest and who resented Umayyad encroachment in their rights. While many rebels were of muwallad origin (i.e., indigenous converts to Islam), Arabs and Berbers also rebelled against the Umayyads so that the emir in Cordoba lost control of most part of the territory.[7] The situation became particularly dangerous for the Umayyads during the reign of the emir ʽAbd Allāh (r. 275/888-300/912).

When his grandson ʽAbd al-Raḥmān III rose to power, he spent the first decades of his reign fighting the rebel lords and eventually succeeding in transforming al-Andalus in “a united community, obedient, quiet, subject and not sovereign, governed and not governing”. In order to achieve this he followed a ‘stick and carrot’ policy.[8]Military expeditions led by ʽAbd al-Raḥmān III himself slowly but continuously attacked the rebel lords in their territories. Heads of Muslim rebels were sent to Cordoba to be hung in one of the gates of the Alcázar (the royal citadel), the Bab al-Sudda, or to be paraded in the market, as fighting enemies were often executed when captured. Prisoners of war were also sent to the capital to be publicly beheaded in the esplanade between the palace and the Guadalquivir river. Sometimes punishment was intended to be especially exemplary and deterrent. This was the case with the crucifixion of the Hafsunids’ corpses. If the rebels submitted, either they left their former dominions to settle in Cordoba where they were enrolled in the Umayyad army or they stayed in their lands ruling in the name of the Cordoban ruler, who gave them written official recognition (tasjil). Gift exchange and submission of whichever form mostly followed prior and well calculated violence.[9] The success of this policy culminated when ʽAbd al-Raḥmān III decided to proclaim himself caliph claiming the inheritance of his ancestors, the Umayyad caliphs of Damascus. So he did on Friday 16th January 316/929. This decision was helped by the devaluation of the title ‘Prince of the Believers’ by the weakening power of the ʽAbbasids and the appearance of a second caliphate in North Africa, that of the Fatimids. On the other hand, the defeat of the Hafsunids and the regaining of Umayyad control over most of Andalusi territory gave ʽAbd al-Raḥmān III internal legitimacy. Shortly before his proclamation as caliph, ʽAbd al-Raḥmān III ordered the creation of  a mint in Cordoba, where not only silver currency was coined, as his predecessors had done before him, but also gold.

The case

Muḥammad b. Ḥārith al-Khushanī heard from a scholar whom he considered trustworthy that a non Arab (ʽajamī) rebel lord who had abandoned his fortress after making a pact with the caliph[10]and now resided in Cordoba had in his possession a free Muslim woman who had been illegally enslaved. That woman sought refuge with the judge Aslam b. ʽAbd al-ʽAzīz who started to look into her affair, i.e. to ascertain that she was free and that she had been illegally enslaved.

At that time, Badr b. Aḥmad was the chamberlain of ʽAbd al-Raḥmān III.[11]Having heard that the judge Aslam was investigating the woman’s caseto, the chamberlain – acting on the orders of the emir- sent to Aslam someone to inform him that the non Arab rebels who had submitted and been granted a pact had to be treated with deference, so that the judge was not to do anything regarding the woman who was in the possession of that particular former rebel lord. But the judge made it clear that he would act according to what he considered was right, implying that if the woman had been enslaved illegally she had to be set free. When the chamberlain was informed of this answer he insisted again, reminding the judge that those rebel lords who had submitted with a pact had to be treated in a special way, that is, what they considered their rights had to be preserved and consequently the woman, even if she had been illegally enslaved, still she had to stay in his possession. The message was clear: political expediency was to overrun the law.

No information is given about what finally happened: Aslam may have yielded to the emir’s pressure or the fact that Aslam is known to have been dismissed as judge may indicate that his resistance left no other option to the emir but to get rid of him. ʽAbd al-Raḥmān III named six judges and the only one who was dismissed twice was Aslam b. ʽAbd al-ʽAzīz, who is described by Ibn Ḥārith al-Khushanī as extremely concerned for the maintenance of ethnic and religious hierarchies. The Umayyad political project at the time involved diminishing the ethnic, social and religious tensions that had plagued the previous decades, and in this project the old elites who had served the Umayyads had much to lose. All this makes it plausible that Aslam made all he could to resist the pressure in favour of the rebel lord and was eventually dismissed.

But what about the case itself? The ethnic origin of the woman is not specified. She could have been an Arab or belonged to an old mawālīfamily, i.e. she could have belonged to the same group of ‘old Muslims’ whose privileges were so dear to Aslam and thus his interest in protecting her rights. In any case, she claimed to be free and Muslim. Legally she could not be enslaved. The enslavement of free men and women is specifically mentioned in other sources as having happened in the territories ruled by Ibn Ḥafṣūn.[12] This is at least the view from Umayyad Cordoba and of course there is the possibility that the accusation of enslaving free men and women was made in order to delegitimize the rebels.[13]On the other hand, such enslavement in cases of war and rebellion was not uncommon. In the case of Ibn Ḥafṣūn, his conversion to Christianity in 285-6/898-9 would have freed him of following Islamic law and thus the enslavement of Muslims would have become legal.[14]

Translation of the Arabic text[15]

Muḥammad b. Ḥārith al-Khushanī said: A scholar whom I consider trustworthy told me that there was in Cordoba a non Arab (ʽajamī) man among those who had been forced to surrender and abandon the fortresses where they had rebelled (mimman istanzala min al-ḥuṣūn al-mukhālifa). He had in his possession a free woman who was a Muslim. She sought refuge with the judge Aslam b. ʽAbd al-ʽAzīz who granted her refuge and started to look into her affair. At that time, the chamberlain Badr b. Aḥmad occupied a high position with the Prince of the Believers – may God have mercy on him. The judge Aslam had hardly started his inquiry when Yaʽlā came to see him on the part of the chamberlain Badr and told him: “The chamberlain sends his regards and informs you that these non Arabs had been forced to submit with the granting of a pact (ʽahd) and they should not be treated with disdain. You know what has to be done to fulfil the pacts. Do not interfere between Fulan the non Arab and the slave who in his possession.” Aslam asked Yaʽlā: “Did the chamberlain send you to tell me this?” Yaʽlā answered: “Yes”. Aslam then said: “Tell him from my part that all the oaths without exception are incumbent upon me. I will not judge any other case until I execute against this non Arab what is legally obligatory regarding this Muslim free woman who in his possession.” Yaʽlā departed, then came back and told him: “The chamberlain sends his regards and says: ‘I do not pretend to push you away from what is legal and I would not consider licit asking you something like this. I merely ask you to proceed according to what is necessary to protect the rights of those with whom the caliph has established pacts (al-muʽāhadūn). I have informed you of the consideration what is due to them and you are aware of what has to be done’.”


[1] On Ibn  Ḥārith al-Khushanī see EI2,V, 73-4 (Ch. Pellat); Sezgin, GAS, I, 363; J. Shaykha, “AbūʽAbd Allāh Muḥammad b. Ḥārith b. Asad al-Khushanī al-Ifrīqī al-Andalusī”, Cahiers de Tunisie 26/103-104 (1978): 33-60; Biblioteca de al-Andalus, vol. 3: De Ibn al-Dabbāg a Ibn Kurz, eds. Jorge Lirola Delgado and José Miguel Puerta Vílchez (Almería: Fundación Ibn Tufayl de Estudios Árabes, 2004), 290-96, nº 548 [A. Zomeño]; Historia de los Autores y Transmisores de al-Andalus (= HATA): and Prosopografía de los Ulemas de al-Andalus (= PUA), ID 8774

[2] See on him Maribel Fierro, “Los cadíes de Córdoba de ʽAbd al-Raḥmān III (r. 300/912-350/961),” in R. El Hour ed., Cadíes y cadiazgo en el Occidente islámico medieval, Estudios Onomástico-Biográficos de al-Andalus. XVIII (CSIC, 2012), 69-98.

[3] Miguel Jiménez Puertas, Linajes de poder en la Loja islámica: de los Banu Jalid a los Alatares (siglos VIII-XV) (Loja, 2009).

[4] Hāshim plays an important role in The case of Ibn Antunyān.

[5] This value given to precedence (sābiqa) is illustrated in the case of  Ibn Ḥazm who claimed a Persian origin for his family while he was known to be the descendant of Iberian converts: Maribel Fierro, “El conde Casio, los Banu Qasi y los linajes godos en al-Andalus,” Studia Historica. Historia Medieval (Los mozárabes entre la Cristiandad y el Islam) 27 (2009), 181-89.

[6] For another instance of Aslam’s pride and prejudice see Maribel Fierro, “Los mawālī de ʽAbd al-Raḥmān I,” Al-Qanara XX (1999): 65-98, 76.

[7] Manuel Acién Almansa, Entre el feudalismo y el Islam. ʽUmar ibn Ḥafṣūn en los historiadores, en las fuentes y en la historia (Jaén, 1994); Eduardo Manzano, Conquistadores, emires y califas. Los omeyas y la formación de al-Andalus (Barcelona: Crítica, 2006).

[8] Omayra Herrero, El perdón del gobernante. (Al-Andalus, ss. II-V/VII-XI) (Helsinki, 2016).

[9] Maribel Fierro, Abd al-Rahman III: The first Cordoban caliph (Oneworld, 2005).

[10] When the case took place ʽAbd al-Raḥmān III was not yet caliph, but Ibn Ḥārith al-Khushanī refers to him as Prince of the Believers.

[11] Badr was not inclined towards Aslam, having in fact colluded with the first judge of ʽAbd al-Raḥmān III, al-Ḥabīb b. Ziyād, to have him been named to the post again after having been substituted by Aslam. The move was successful with the first dismissal of Aslam taking place in 309/921. We do not have evidence that allows us to date the case of the free woman, i.e., we do not know if it took place during the first or second term of Aslam’s qāḍīship.

[12] Francisco Vidal, “Sobre la compraventa de hombres libres en los dominios de Ibn Ḥafṣūn,” Homenaje al Prof. Jacinto Bosch Vilá, 2 vols. (Granada, 1991), I, 417-28, quoting al-Wansharīsī (d. 914/1508), al-Miʽyār al-muʽrib wa-l-jamīʽ al-mughrib ʽan fatāwī ahl Ifriqiya wa-l-Andalus wa-l-Maghrib, 13 vols. (Rabat, 1401/1981), IX, 219-20.

[13] Such accusation had also been made against the vizier and military commander Hāshim b. ʽAbd al-ʽAzīz regarding his treatment of defeated rebels and their families. In a campaign he would have asked the prisoners if they were Muslims; those who claimed to be Muslims were further asked to recite a Qur’ānic verse or a ḥadīth, but even those who did were enslaved with Hāshim claiming that they had just learned them and were not real Muslims. Some pious Muslims later freed those enslaved: Maribel Fierro, “Genealogies of power in al-Andalus: politics, religion and ethnicity during the second/eighth-fifth/eleventh centuries,” Annales Islamologiques 42 (2008):29-56. That is, the practice of illegally enslaving men and women was not limited to the rebels’ camp, but is also attributed to the Umayyad army.

[14] Maribel Fierro, “Four questions regarding Ibn Ḥafṣūn,” in The Formation of al-Andalus. Part 1: History and Society, ed. M. Marín, (Ashgate: Variorum, 1998), 291-328, section 2.1.

[15] I wish to thank Luis Molina for his help.

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