Islamic law insists that all slave owners have to take good care of their slaves, by giving them good food, dress them in quality clothes and give them good living spaces. Islamic law prohibits minimizing or torturing slaves.
(Hunwick cited in Klein 1993a: 15) Slaves had certain, although limited, rights in relation to their masters. They had for example the right to be given food and clothing, and were legally considered part of the Muslim community and so were allowed to pray and be Muslim. However, enforcing their rights sometimes conflicted with individual masters’ decisions. Some for example
never taught their slaves the most basic praying verses (Arabic: Surat) and as such were
excluded from practicing religion. My interpreter could barely hide her shock at being the only pious woman who prayed regularly in the ward were we were hosted in Dalla
(Wuro Maccuɓe).
‘The justifications for enslavement, and the institutions were those given by Muslim law and ideology, so we may label this as Muslim slavery in Africa’ (Manning 1990: 128). This ‘Muslim Slavery’ was described extensively in Islamic texts and there are texts by several scholars in the Malian Sahel region who specialised in legal prescrip-
tions from the 15th century onwards.3 In the Sahara in the nineteenth century, the
3 Lovejoy (2006) describes Ahmed Baaba, a scholar from (Mali) who wrote on the ‘ethics of slavery in Islam’. Lofkrantz (2008: 27-43) describes scholars in the 19th-century Sokoto Empire (in present-day Nigeria) debating ransoming in the legal tradition of West African Islam. Lydon (2007) documents
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sayings of the prophet (Arabic: Hadith) were interpreted in various ways. The Malikite
doctrine of Islamic Law maintained the most elaborate body of rules concerning the rights of slaves (Lydon 2007: 391) and Malikite Law distinguishes between two cate- gories of persons: The free and those who are not free (Hurault 1994: 91; Brunschwig 1960: 30). Unlike European legislation, which is based on Christian morality, and where inequality is unacceptable, this body of Islamic legislation institutionalizes inequality as a legal status and certain groups of people (slaves, migrants) are excluded as they are
considered second-class citizens.4 In the Sahelian interpretation of Malikite Islamic
legislation, inequality is not problematized but is even prioritized. Slaves are legally denied the same rights as the freeborn, although this does not mean that they have no rights. While State Law is organized according to a mono-status ideology, Islamic Law is based on multi-statuses.
Islamic ideology and Malikite legislation profoundly marked Fulɓe society. Islamic
Fulɓe scholars (FF: Moodibaaɓe) in the Haayre region mainly use legal texts based on
Malikite Law but customary traditions have intermingled with this body of legislation over time. It is not the aim here to disentangle the sphere of customary from Islamic legislation, suffice to say that it is a particular mix with its own dynamics as interpreted, directed and applied by hereditary lineages of people with the status of Islamic scholars in the Haayre. I use the term Islamic Customary Law to refer to this particular hybrid mix.
Talaata’s story indicates how imams preach different ideologies and have differing
opinions on the legal status of slave descendants. Several scholars in the Haayre5 today
maintain that, legally, only free people can be fully practising Muslims, arguing that the legal category of ‘slave’ is recognized in Islam and should be maintained. Others con- test such readings and emphasize that the prophet preached for slaves to be treated with great respect as if they had already been liberated.
Much therefore depends on the way in which Islamic legislation is interpreted, with interpretations ranging from dogmatic to liberal. Both extremes of the same religious continuum are described here but more attention will be paid to the more orthodox interpretations of Malikite Law because this is most widely practised in the Haayre.
According to the dogmatic interpretations of the legal body of Malikite legislation, the opposition between slave and freeborn could not be overcome. A slave could not obtain freeborn status but could free himself from aspects of slavery. Descendants of non-freed slaves are legally still treated as slaves but a slave could improve his position within the legal category of non-freeborn slave status. Often these legal improvements allowed slaves to come close to having the rights and duties of freeborn members of
Islamic legal culture and slave-ownership contests in the nineteenth-century Sahara (Mauritania) and Hall (2005a) describes debates on race and hierarchy, based on Islamic text written in eighteenth- century Mali.
4 The European legal system introduced a system of second-class citizenship that is external to society. As such, the idea of an equal society can be maintained. However, second-class citizenship came into existence, especially regarding refugees and migrants. See Fassin (2008) on illegal immigrants in France and Geschiere (2009).
5 But also among Ful
ɓe groups elsewhere in the Sahel. See Botte (1999a: 13-14) on Guinea; N’Gaide (2003) and Schmitz (2006/2009) on the Senegal River Valley, and Vereecke (1994) on Niger.
society because they could, for example, acquire the rights to own slaves themselves, buy their freedom and have access to a religious community. Nevertheless, they remain categorized as non-freeborn and slave status continues to be stigmatized and hereditary regardless of any improvements in one’s (individual) condition.
Even for those who have improved their condition legally, the legal aspects of marginal slave status are not evident on a daily basis and it is only at times of conflict and crisis and at ritualized life-cycle moments that formal rights are considered. When someone of slave descent, for example, comes into conflict with a freeborn family over land rights, he will probably be told that he has no rights over land. And when choosing a marriage partner, a person may be reminded that they are of slave descent and are not allowed to marry a freeborn because legally they are still categorized as being of slave status.
Scholars at the liberal end of Islamic jurisprudence, like the imam from Nokara, are nuanced and do not take the existence of slave status as a given. As Saibou (2005: 863)
observes for Fulɓe imams in northern Cameroon, these are often Islamic scholars who
have studied abroad and they do not accept slavery as an institution today. Attempts by
slave descendants in Malian Fulɓe society (Berndt 2008) to deconstruct slave status as a
legal category have remained complex. In Mali, as in other countries in the sub-region, those scholars who criticize legacies of slavery by deconstructing religious arguments
are often of slave descent themselves (Ibid.). Their credibility therefore remains prob-
lematic in the eyes of freeborn members of society.6 This is a universal paradox: To
efficiently criticize a system, one must (have been) fully part of it.
At the other end of the scale are the Islamic scholars who dogmatically interpret the Koran to reinforce the cultural field of hierarchy to their own benefit. N’Gaide (2003:
709), describing Fulɓe society in the Senegal River Valley, indicates how ‘Islamtrans-
forms itself in an element of identification and in a pretext for the re-hierarchization of
society.’7 In this view, Islam is being instrumentalized by the elite to conserve their
hegemony on nobility.
It is important to consider not only by whom and how rights are implemented but
also when they are applied in order to understand how legal entitlements of different
status groups do or do not work (cf. Kopytoff & Miers 1977: 52).8 Chapter 1 discussed
how, even though some slaves have enjoyed fair treatment in times of abundance, in years of crisis and drought they could no longer depend on their masters or rely on their legal bond of care and protection. Mauritanian scholar Ould Ahmed Salem (2003: 38) emphasizes that if the question of slavery is still recognized today in Islamic law, ‘it is because some have a certain interpretation of the Sharia, an interpretation that does not recognize the abolition of slavery and contests it in the heart of the courts of modern law.’ It is this tension that is addressed in the following section.
6 Humery-Dieng (2010) describes how Senegalese novelists of slave descent are trying to get their stories legitimized.
7 In French: ‘L’Islam se transforme en un élément d’identification et en un prétexte pour la ré-hiérar- chisation de la société.’
8 As Kopytoff & Miers (1977: 52) see it: ‘Too much emphasis on legal rules is dangerous because reliance on what happens or happened on one moment in time can obscure absolute legal entitlements which are only apparent in times of crisis.’
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