Islam and the Emancipatory Ethic: Islamic Law, Liberation Theology and Prison Abolition

Abstract

This paper provides a genealogical overview of discourses pertaining to emancipation within Islamic thought. I demonstrate how classical Islamic scholarship developed a tradition in which a clear emancipatory ethic can be located. Further, I explore how emancipation came to be read as anticipating the abolition of slavery in the contemporary period through focusing on the work of Muhammad Abduh. Finally, I discuss the potential engagements between Islamic notions of emancipation and contemporary discourses pertaining to prison abolition. I argue that the strong emancipatory ethic found within the classical legal tradition would not abide by the exploitative prison systems found across various nations. Engaging Islamic law through a Liberation Theology framework, I claim that a serious engagement with prison abolition discourses is a natural continuation for a tradition with such a strong precedent of emancipatory impetus.

1. Introduction

[Definition of] Emancipation:

Lexically: Liberation; Deliverance;

Legally: Liberation from enslavement for the sake of God… God says in the Qur’an ‘And liberate the slave’ (Q4:92), and therefore the law recommends freeing the slave as God has also stated ‘What will make you realise the steep path? It is the liberation of the slave’ (Q90:11–12)… And God also says, ‘Do not take God’s communications as mockery’.

-al-Sarakhsī, Kitāb Al-Mabsūṭ

Within Islamic thought, granting freedom to the enslaved has consistently been described as one of the most meritorious acts that a believer can perform. As the Qur’anic exegete al-Qurṭubī (d. 1273) stated, ‘Manumission and charity are the most virtuous of deeds, and it is narrated from Abū Ḥanīfa that manumission is preferable to giving charity’ (al-‘itq afḍal min as-ṣadaqa) (al-Qurṭubī 1995, vol. 22, p. 302). Throughout the Islamicate past, narratives of manumission can be located across spatial and temporal ranges. Whether through the hagiographies of Rābia al-Adawīya (d. 801) in which she gains freedom due to her saintly miracles (Ford 1999), the court chronicles of Timbuktu which reveal various emancipation contracts (DDS Center for Research Libraries 2005), or narratives from the late Ottoman empire in which the manumission of enslaved people was understood to be ‘automatic’ after 7 years of service (Erdem 1996). Discourses of emancipation have strong precedent within the Islamic tradition, both on theoretical and historical registers.

The emancipatory trend has perhaps been derived from the Qur’anic text. Within the scripture of Islam, we find there are numerous verses that impel believers to free enslaved people for various reasons, whether for the expiation of certain sins, breaking of vows, or simply because it is a righteous deed. This appears to have led to an ethos in which emancipating slaves was not only recommended within Islamic law; rather, jurists can be seen to employ radically counter intuitive logics to help facilitate freedom.

This, of course, is not to assume that the impulse towards manumission led neatly to an abolitionist impulse. In fact, scholarly opponents to abolition claimed that the abolition of slavery was contrary to the spirit of Islam as this would ‘deny future generations the opportunity to commit the virtuous deed of freeing slaves’ (Clarence-Smith 2006, p. 189). The idea that the emancipation promoted in the Qur’an was anticipating the wholesale abolition of slavery was developed and propagated by ‘Islamic abolitionist’ scholars in the 19th century, such as Muhammad Abduh (d. 1905) and Rashid Rida (d. 1935).

In contemporary times, the fact that the Qur’an is a text that supports the abolition of slavery has become so widely accepted within Islamic thought that few would question such a claim. However, this was a reading that only began to gain traction a century ago. This transformative shift in re-reading emancipation in a new context provides significant insights into the ever-evolving discursivity of Islam as a tradition. It also highlights the potentialities of what Islamic understandings of emancipation could mean for those fighting for freedom today.

While the abolition of slavery within Islamic thought has shifted from a peripheral interpretation a century ago to a hegemonic reading in contemporary times, could a similar shift take place regarding prison abolition in the future? I argue that a serious theological engagement with prison abolition discourses is a natural continuation for a tradition with such a strong precedent of emancipatory impetus.

I engage with the works of prison abolitionists (Davis 2005; Alexander 2010; Dubler and Lloyd 2020) who argue that slavery was never truly abolished in the context of the USA. Rather, the exploitative conditions of slavery were transmuted from enslavement to the racist practices of Jim Crow, which eventually transformed and are currently manifested in the practice of mass incarceration. Using the USA as a case-study to think through the problematic links of prisons, neo-slavery and racism, I contend that the emancipatory ethic found within the classical tradition of Islam would not abide by the oppressive systems currently normalized by the prison–industrial complex. In doing so, I call for a theological reappraisal of the acceptance of prisons within Islamic thought.1

In this paper, I provide a genealogical overview of conversations pertaining to emancipation. I demonstrate how classical Islamic scholarship developed a tradition in which a clear emancipatory ethic can be located. Furthermore, I explore how emancipation within Islamic thought came be to read as anticipating the abolition of slavery in the contemporary period through focusing on the work of Muhammad Abduh. Finally, I discuss the potential engagements between Islamic notions of emancipation and contemporary discourses pertaining to prison abolition. In doing so, I contribute to the growing field of Islamic Liberation Theology (ILT). Within ILT, there is an active attempt to challenge injustice using the discursive universe of the Islamic tradition. While much work has been done on ILT and readings of the Qur’an (Esack 1997; Rahemtulla 2017), this paper attempts to develop a sustained conversation with the Islamic legal tradition.

2. Emancipation in the Classical Legal Tradition

The Qur’an promotes the emancipation of slaves in numerous verses, and many hadith traditions were equally interpreted as advancing an emancipatory spirit (Freamon 2019). While the scriptural source texts remained the bedrock upon which the legal system of Islam built upon, Muslim legal scholars found themselves with increasingly complex queries and scenarios which they were expected to legislate for. What can be seen within the legal tradition is a fascinating penchant for facilitating emancipation, even when it appears to be in contradiction to the general principles of the Islamic legal tradition. This is what is referred to as the ‘emancipatory ethic’ in Islamic law (Bashir 2024, in press).

A clear instance of this can be seen with the issue of ‘blasphemous emancipation’. That is, if a master emancipates his slave in the name of Satan or idols. According to the Ḥanafī school, such a statement, while completely illegitimate in general, would still be considered a valid manumission contract.

As al-Qudūrī (d. 1037) states, ‘whoever sets his slave free in the name of God or for Satan or for an idol, the slave is considered free’ (al-Qudūrī 2010, pp. 475–76). In his famed commentary on the Mukhtaṣar of al-Qudūrī, al-Maydānī adds, ‘since the ordinance of manumission was issued by the master and thereby extends to the slave, the emancipation occurs. His statement thereafter is nonsensical and sinful, as he seeks to venerate disbelief’ (al-Maydānī n.d., vol. 3, p. 117).

While it may appear striking that this was viewed as legitimate in consideration of the fact that shirk (polytheism) is usually described as the only unforgivable sin within Islam, human freedom was often given precedence in legal thought. This led classical scholars to overlook the manner in which the moment of emancipation was achieved, and emphasise that once it had occurred, it could not be reneged.

In another case, the Hanafi jurist al-Sarakhsī (d. 1090) discusses a ruling in which there is a dispute between a mukātab and his owner. A mukātab was a slave that had entered a contract with his owner that ensured he would be emancipated once a certain agreed sum had been paid (the estimated price of the slave). The dispute explores an instance in which it was argued that the mukātab claimed his freedom contract was worth 1000 dirhams, and his master claimed the contract is worth 2000 dirhams. Surprisingly, the ruling states ‘the judge should rule on the claim of the mukātab so long as he takes an oath and establish the contract at 1000 dirhams’ (al-Sarakhsī 2001, vol. 8, p. 66).

The fact that the slave’s word would be held in higher regard than his masters’ claim is fascinating. However, this perhaps has little to do with the potential integrity of the enslaved. Rather, in the minds of jurists, the lower amount (1000 dirhams) hastens the completion of the kitāba contract and results in manumission with more immediacy.

Furthermore, al-Sarakhsī clarifies that if the master can bring undisputable evidence that the contract was in fact 2000 dirhams, the judge must accept he has made a mistake in emancipating the slave at 1000 dirhams. Nevertheless, though the court has mistakenly emancipated the enslaved person, this cannot be undone—as once emancipated, it is illegal to enslave a free person.

In another legal discussion, Ibn Qudāmah (d. 1223) of the Hanbalī school cites an issue that similarly raises problematic consequences and appears to contradict general wisdom regarding contracts and their stipulations. He narrates a ruling in which it is stated that ‘if [the master] says to his slave: you are free if I sell you, then he proceeds to sell him, the slave becomes free’ (Ibn Qudāmah 1997, vol. 6, p. 27).

Legal scholars generally hold that the seller cannot govern over that which he does not own. Therefore, once the sale has been completed, the previous owner has no adjudication over the sold item. As such, once the slave is sold, the master is in no position to free him and has no power over him, as he is no longer his property.

Ibn Qudāmah discusses this position and appreciates its merits. However, he concludes, while the criticism of the ruling is consistent, the slave should be freed as ‘it is incumbent that freedom is given preference’ (yajibu taglīb al-hurriya) (Ibn Qudāmah 1997, vol. 6, p. 27). In this instance, the master continues to govern over something that is not his property—which would not hold true in other circumstances.

The facilitation of emancipation in contradiction of the usual logics of Islamic law can be consistently located throughout legal literature. Another case explored a paternity dispute linked to a female slave. The umm al-walad (lit. mother of the child) was a female slave who had been impregnated by her master. Due to the pregnancy and the shift in status, she was promised freedom upon the death of her master and could not be sold.

It was argued that if a married female slave gave birth to a child, and her master claimed paternity, his claim would not be accepted. Rather, the lineage of the child would be established through the female slave’s husband. However, ‘the child is still born free (yusīru al-walad hurr), and the female slave still becomes the umm al-walad of the master’ (Zarka 1989, p. 413).

In this instance, it is logically inconsistent that the child should be attributed freedom and the mother would become an umm al-walad, whilst simultaneously denying the paternity of the master. In normal circumstances, a woman only becomes umm al-walad when she gives birth to her master’s child, and only then she is promised freedom upon her master’s death. Similarly, if a child is born to two slave parents, the child was also considered enslaved. The fact that the child would be born free, and the female slave would be granted the status of umm al-walad, while denying the claim of paternity of the master, simply does not follow logical functions of Islamic law. Either the master is the father of the child, and the slave woman can claim to be umm al-walad, or the master is not the father, and she is not umm al-walad. Nevertheless, jurists justified the illogical and incoherent to facilitate freedom.

Perhaps the most interesting case to highlight the emancipatory ethos in classical Islamic law can be seen with a paternity dispute between an enslaved Muslim couple and a free non-Muslim couple. It was claimed that if a free non-believer and an enslaved Muslim laid claim to a child as their own, it was preferable to allocate the child to the free non-believer. al-Sarakhsī narrates,

‘If an enslaved Muslim claims paternity of a child from relations with a female slave, and a free non-believer claims paternity of the child from relations with his [free] wife, the ruling is enacted in favour of the free non-believer. In his statement there is an affirmation of freedom for the child, and this contains immediate benefit [for the child]. The child may not obtain emancipation as they grow, but perhaps Allah will guide them, and they will become Muslim on their own accord. The consideration of the [child’s] freedom is given preference in regard to his rights’.

(al-Sarakhsī 2001, vol. 17, pp. 99–100)

Al-Sarakhsī’s position may perhaps appear provocative at first glance. The fact that jurists were willing to sacrifice a child’s adherence to the religion of Islam, in place of his opportunity to gain freedom, certainly raises fascinating questions regarding our understandings of classical jurists and their worldviews. Nevertheless, it clearly indicates the high regard in which attaining freedom and granting emancipation was held.

The emancipatory impulse perhaps manifests most clearly in the three manumission contracts that were developed within Islamic law: the tadbīr, the istīlād, and the kitāba. The tadbīr designated that a slave was to be granted freedom upon the death of his master, and therefore, the slave that was bestowed this contract was named a mudabbar. As mentioned previously, in cases in which a female slave gave birth to a child from her master, her status was transferred to that of the umm al-walad. At this juncture, it was not permitted for her master to sell her or transfer her ownership to another, and she would be granted freedom upon the master’s death.

Interestingly, basing the contingency of a slave’s freedom upon the death of their master was not the most innocuous incentive for a slave hoping to attain freedom. Consequently, jurists were forced to legislate for the problematic, yet quite conceivable situation, in which a slave may murder their master in a bid to attain freedom.

In discussion of the mudabbar, the position attributed to Mālik states, ‘if the slave murdered [his master] intentionally, his tadbīr contract is void, and he remains a slave for the heirs [of the master]. If they wish, they may execute him or allow him to live as a slave to them.’ (al-Ṭaḥāwī 1995, vol. 3, p. 189). Ibn Qudāmah similarly adds that the tadbīr contract is nullified through murder as ‘[the mudabbar] intended to hasten his emancipation by means of murder, and he is therefore punished through affirmation of the opposite of his intention, which is the nullification of the tadbīr contract.’ (Ibn Qudāmah 1997, vol. 14, p. 437). This is because the tadbīr resembles inheritance, and inheritance becomes void if the beneficiary murders the person he will inherit from. However, the Ḥanafī jurist Al-Tahāwī (d. 993) adds that the contract remains valid, ‘if the murder was accidental, then there can be no charge imputed against [the mudabbar]’ (al-Ṭaḥāwī 1995, vol. 3, p. 189).

Similar to the tabdīr, the freedom of the umm al-walad was also contingent on the death of her master. Unlike with the case of the mudabbar, it was surprisingly argued that the umm al-walad would be considered free upon murdering her master. There was agreement amongst the schools that,

‘If the umm al-walad murders her master, she is emancipated. It is not possible to transfer her ownership to another, and the ownership of her current master has ceased through his death. She therefore becomes a free woman, as would have been the case if he had been murdered by another, and she must pay the price of herself. It is not obligatory that she should face retribution’.

(Ibn Qudāmah 1997, vol. 14, p. 607)

The fact that she should be considered free was accepted by the Shāfiʿī school; however, with the proposed caveat that she was liable for diya (blood money) in order to become a free woman. This was justified through the fact that ‘it is obligatory for a free person who murders a free person to pay blood-money’. However, the Ḥanafī and Ḥanbalī schools maintained that when the crime was perpetrated, she was not free but in a state of servitude as an umm al-walad, and therefore cannot be expected to be judged as a free person and is not obligated to pay more than her price (fa-lam yajib bi-hā akthar min qīmatihā).

The fact that jurists argued that the umm al-walad could legitimately murder her way to freedom is demonstrative of the complex nature of laws pertaining to slavery within Islamic law, and again, highlights the somewhat absurd positions that jurists found themselves defending to facilitate emancipatory positions.

The third of the contracts was the kitāba. The kitāba contract stipulated that the enslaved person would pay their estimated price to the master and would be granted freedom once the amount was complete. As such, this suggested the mukātab could own property independently of his master. The Mālikī position was perhaps the most explicit regarding the issue, with the jurist Ibn ‘Abd al-Ḥakam (d. 829) stating ‘[the mukātab’s] property is inviolable; his master may not touch it once the contract has begun’. (Brockopp 2000, p. 18). Within the Mālikī school, it was even stipulated that the mukātab gained the ability to own slaves and concubines of their own (Ali 2010, p. 165).

On many other issues, the mukātab gained a number of rights and was ostensibly viewed as akin to a free person. He gained the ability to trade and disobey direct orders from his master. For instance, it was argued that the mukātab could not be prohibited from travelling if he so wished. While the Shāfiʿī school limited this to travelling to a relatively close location, the majority of jurists allowed the mukātab to travel without restriction, irrespective of his master’s permission (Ibn Qudāmah 1997, vol. 14, pp. 475–76). In fact, the Ḥanafī and Ḥanbalī schools contend that even if the restriction of travel was stipulated within the kitāba contract, the clause should be considered void, as it limits the ability of the mukātab to earn wealth in order to attain his freedom.

Furthermore, the master had no right to terminate the contract unless the conditions had been violated. Indeed, even if the master perished, the contract remained valid and was to be inherited by the master’s heirs. The only method in which the contract was nullified was if the mukātab failed to make his payments or the mukātab died.

In both cases, however, jurists attempted to legislate in a bid to offer leniency. For example, the Ḥanafī school argued that that if a mukātab is unable to make his payments, a judge should assess his circumstances, and if he is owed a debt or there is a chance the mukātab may gain some property that may cover his payments towards the contract, ‘the judge should not hasten towards declaring him insolvent (lam yaj’al bi-ta’jīzihi)’ and should grant him time to attempt to locate funds. Similarly, a narration attributed to Abū Yūsuf states ‘he should not be declared insolvent until two successive payments have been missed’ (al-Qudūrī 2010, p. 490).

Regarding insolvency, al-Shāfiʿī added that the decision is ultimately linked to the good will of the master, and it was only if the master chose to void the contract, that the kitāba would be nullified (al-Shāfiʿī 2001, vol. 9, p. 427). It was also stipulated that if a mukātab was to perish, and he owned property or some form of wealth, the remainder of the owed amount should be taken from this wealth ‘and it is ruled that he was set free during the last part of his life’ (al-Qudūrī 2010, p. 490). This consequently led to the children of the mukātab being set free and inheriting whatever wealth was remaining.

In sum, what can be seen within the classical legal tradition is a radically counter-intuitive logic in which emancipation is pursued to the detriment of other principles in Islamic law. Jurists attempted to justify the blasphemous, the incoherent and the outright absurd to allow enslaved peoples to achieve freedom. Arguably, the strong inclination towards freedom stems from the Qur’an itself in which numerous injunctions promoting freedom can be found, which led to an ethos in which emancipating slaves was viewed as one of the most blessed and rewarding acts a Muslim could undertake. As a result, there is a clear ‘emancipatory ethic’ found within the classical legal tradition.2

It should be noted, however, that in the pre-abolitionist age, slavery was very much a normalized practice. Therefore, while emancipation was promoted, slavery was still viewed as a legitimate trade by classical scholars. It was not deemed sinful or problematic within classical discourses. The transformative horizons of abolitionism remained beyond their perception, and they were unable to dream of a world without slavery. This naturally impacted their interpretations of law and scripture. The idea that the emancipatory verses in the Qur’an were, in fact, pointing towards the complete abolition of slavery gained prominence in the 19th century in which Muslim scholarship engaged with global abolitionist currents (Bashir 2024, in press).

3. Emancipation as Abolition

The genealogy of abolitionist thought remains a heavily contested research area. While Eurocentric scholarship has historically sought to assuage the horrors of colonialism through the citation of the abolition of slavery as a praiseworthy feat, the role of colonial powers is far more complex than has often been suggested (Lewis 1990). For example, scholars have argued that the popularity of abolitionism dovetailed with the lack of economic viability of slavery, and subsequently free labour was viewed as more profitable as modern economies began to take shape (Williams 1944). Others have emphasized that abolitionists were often deeply racist individuals who cared very little for the enslaved, while scholars have increasingly cited the impact rebellions from enslaved communities had on conceptions of the viability of slavery as a profitable institution (Robinson 2000; Davis 2008). These facts challenge simplistic narratives in which Western colonialists are viewed as altruistic humanitarians (Bashir 2019).

One key aspect of abolitionism that has certainly been overlooked in scholarship is the articulation of abolitionist ideas across non-European linguistic registers; namely, the engagement of Muslim scholarship with abolitionist thought that led to ‘Islamic abolitionism’. The contribution of Muslim scholarship promoting abolition helped facilitate the adoption of abolitionist ideals across the Muslim world, and the recovery of such histories is significant as we look to unmoor Eurocentric readings of the past through a decolonial lens.

A key contributor towards ‘Islamic abolitionism’ was the famed Grand Mufti of Egypt, Muhammad Abduh (d. 1905). It has been argued that Abduh’s interpretation of Islam as a tradition promoting abolition was key for anti-slavery sentiment to gain traction amongst both scholars and common people in Egypt, as ‘the abolition of slavery in Egypt would not have been possible without the eventual support of the people and their religious leaders, particularly Muhammad Abduh’ (Robinson-Dunn 2006, p. 67). As well as his own writings, Abduh’s ideas were articulated and propagated further by his student Rashid Rida (d. 1935).

Abduh was among the first to articulate the idea that the Qur’an not only promoted emancipation, but the emancipatory trend was in fact a precursor to the complete abolition of slavery. The basic argument claimed that slavery had not been completely abolished by the Qur’ān in the seventh century; however, the foundations for abolition had been established due to various calls to emancipate slaves throughout scripture, and the restriction of fresh enslavement delineated within Islamic doctrine. Therefore, the abolition of slavery was in fact completely attuned with the aims of the religion of Islam (Ghazal 2009).

Abduh states, ‘the religion of Islam permitted enslavement in the same manner as all previous religions; however, this religion, advanced in its legal wisdom in contrast to previous dispensations, did not discontinue the harsh laws all at once’. Rather, he claims, Islam challenged the application of these laws and reformed the severe exploitation of slaves that was being practiced in the name of religion. As a result, ‘it can be seen that Islam narrowed the avenues of enslavement, and it becomes clear beyond a doubt that the intention of Islamic law was the fundamental eradication of slavery gradually (ibṭāl al-riqq asāsan bi-al-tadrīj)’ (Rida 1905).3

To justify his position, Abduh listed a number of legal rulings in a bid to demonstrate that Islamic law clearly sought to delimit the sources of enslavement, in order to restrict slavery in general. He pointed to numerous discourses that demonstrated an emancipatory ethic, such as ‘illegal enslavement is considered amongst the most despicable acts (a’ẓam al-muḥarammāt)’ and that ‘emancipation is considered as the best way of demonstrating gratitude to God’s blessings’ (Ibid).

For Abduh, the fact that jurists went to such lengths to promote manumission highlights that slavery was always viewed as ‘problematic’ within the religious tradition of Islam—even if it was not explicitly stated as such. Perhaps the most significant ruling cited by Abduh concerning abolition can be seen with the claim that the leader of Muslims can contradict the legal schools to restrict slavery,

‘If the Caliph of the Muslims in his legal judgment (there is no doubt that the Caliph is a legal expert) considers all slaves illegal, then the ruling to free them all at one time is valid, regardless of whether this contradicts the judgements of the classical legal schools.’

(Ibid)

Accordingly, the religion of Islam cannot therefore be accused of tolerating and allowing slavery. Abduh’s views impacted many, and one of those who was influenced by his arguments was the Syrian scholar Abd al-Rahman al-Kawākibī (d. 1902). In the same article, al-Kawākibī buttressed Abduh’s claims and argued that the reason for the continuation of slavery was in fact due to the abuse of the religious tradition by tyrannical rulers. al-Kawākibī states, ‘the reality is that the continuation of slavery is due to despotic rulers who are not guided by the religion of Islam; rather, they apply the law according to their whims’ (Ibid).

al-Kawākibī severely critiqued the wanton abuse of the Islamic tradition for the nefarious desires of political elites. He accused political leaders of hypocrisy, as ‘those rulers now appear in Europe claiming they desire to prohibit slavery but are unable to do so as they fear their Muslim citizens. [They claim] slavery is legally permissible [according to Islam] and there is a necessity to protect Islamic culture’ (Ibid).

However, al-Kawākibī argues that the continuation of slavery is not linked to Muslim populations, most of whom do not possess slaves; rather, the preservation of slavery in the Muslim world is linked to ‘the arrogance of the rulers and those that follow them, not the religion of Islam’ (Ibid). al-Kawākibī proceeds to claim that Muslim scholars have generally remained silent regarding the misuse of the religious tradition due to fear of tyrannical rulers, and it is only for this reason that Islam is perceived to have a link with slavery. In doing so, he provides political justification to Abduh’s reformist reading.

The idea that emancipation in the Qur’an was referent to the abolition of slavery constituted a unique reappropriation of classical doctrines pertaining to manumission. While emancipation was consistently praised in the classical legal tradition, the eradication of slavery was never cited as an aim of Islamic law by classical scholars, nor was slavery conceptualized as a problematic practice per se. Therefore, Abduh’s claims were certainly seen as a radical and heretical innovation in his time. In fact, those of a more traditional disposition explicitly challenged Abduh to demonstrate any calls for abolition prior to his own. The idea that previous injunctions could be reinterpreted in an abolitionist manner was deemed as a capitulation to ‘foreign ideals’ for Abduh’s opponents—as it broke away from the established practice of the legal tradition (Ghazal 2009).

However, Abduh’s Salafist hermeneutical shift allowed him to overlook centuries of accrued tradition and return directly to scriptural sources to re-read Qur’anic injunctions within a radically new context. While Salafism is often collapsed into Wahabism in contemporary discourses, for Abduh (and his mentor Afghani), an appeal to early Islam (the time of the salaf—traditionally defined as the first three generations of Muslims) allowed him to bypass centuries of accrued tradition and interpret the core texts of Islam with more flexibility. This early period was viewed as a dynamic, creative, and inspired time that was not to be emulated in the content that had been produced, but rather in its spirit.

In this sense, for Abduh, the concept of emancipation was not bound to the interpretations of previous generations, and it was incumbent on Muslims to partake in ijtihad (independent reasoning) to renew the Islamic faith (as the salaf had done). The development of this hermeneutical shift was justified due to the rigidity of the frameworks that preceded it, and for Abduh, the fact slavery had been permitted in the name of religion for millennia demonstrated the need for a critical re-evaluation of the tradition.

4. What Could Emancipation Mean Today? Liberation Theology and Prison Abolition

The transformation from reading ‘Itq in the Islamic tradition as the emancipation of an individual slave to being understood as referent to the wholesale abolition of slavery marked a significant shift within the interpretive tradition of Islam. Yet, it is relatively clear that the position promoted by Abduh (and many others) has not only become ‘mainstream’ but could currently be described as hegemonic.

In contemporary times, the fact that the Qur’an is a text that supports the abolition of slavery has become as axiomatic a statement for Muslims as declaring that the Qur’an promotes monotheism. However, this was an interpretation that only began to gain traction a century ago. Prior to moving to the centre of the interpretive tradition, when initially conceived, Qur’anic abolition was a peripheral position that was actively challenged by Muslim defenders of the slave trade as heretical, unorthodox, and innovative (Bashir 2024, in press).

The acceptance of the interpretive shift was facilitated by an increased awareness of the horrors of slavery and the plight of enslaved peoples (Al-Harthi 2018). In this final section, I explore whether similar shifts within Muslim interpretive consciousness could occur regarding prison abolition as more information becomes available regarding the detrimental functions, abuses and the deleterious impact prisons have on individuals, families, and society more generally.

Within Liberation theology, there is an active attempt to develop Islamic discourse to provide concrete solutions to the problems that societies currently face. The hermeneutical key upon which ILT builds is the idea of establishing divine discourses of justice within the world. Taking from narratives of the Prophet Moses freeing the Israelites in Egypt, as well the radical egalitarianism promoted by the Prophet Muhammad, ILT claims that the divine message is intrinsically linked with establishing justice on the ground. As such, ILT seeks to actively work towards a more just society in which oppression is actively challenged and combatted (Rahemtulla 2017).

With that, let us consider discussions pertaining to emancipation through an ILT framework. I argue that the current discourses pertaining to emancipation and Islam remain mired in a polemical and apologetic paradigm.

Discussions pertaining to emancipation are used to deflect from criticisms that Islam allowed slavery and is therefore an immoral religion, in a bid to highlight the ‘humane’ nature of classical Islamic thought in comparison to other practices at the time (Uthmānī 2013). Alternatively, they are cited by those supportive of the reformist positions promoted by Muhammad Abduh—to progress an argument that emancipation was always anticipating an age of abolitionism (Rahman 1979).

In both instances, however, I claim that the emancipatory flame within Islamic thought is roundly extinguished. For those historicising the emancipatory ethos, the legal rulings discussed in the first section of this paper become little more than an intellectual retort to those critiquing the history of slavery in the Islamicate. Slavery may have existed, the argument runs, but the emancipatory ethos found within the tradition mitigates critiques that men, women, and children were enslaved in the name of Islam. Therefore, once the emancipatory rulings have been established as a defensive armour against charges of immorality, any broader significance of what the emancipatory ethic could mean is overlooked and roundly ignored.

For the second group, those such as Abduh, Rahman etc. who used slavery as a clarion call for a reformist hermeneutic, much of the emancipatory impetus becomes redundant as the legal abolition of slavery has occurred. In this instance, the call to ‘liberate the slave’ is read as the legal eradication of the slave trade. As this has now been achieved, much of the traditional material surrounding emancipation is viewed as superfluous and redundant (not necessarily explicitly, but certainly through the omission of its discussion).

As one example, the Qur’an clearly stipulates one of the recipients of alms as those ‘in bondage’ (fī al-riqāb) (Q2:177). In classical exegesis of the verse, commentators stipulated that charity should be provided to help the mukātab achieve his freedom. For example, Ibn Kathīr argues that the verse refers to the mukātab slaves who are seeking to free themselves but ‘cannot find enough wealth to buy their freedom’ (lā yajidūna mā yu’addūnahū fī kitābatihim)’ (Ibn Kathīr 1974, pp. 231–2). Due to the abolition of slavery, the status of the mukātab does not currently exist, nor are there any ‘official’ slaves. Therefore, in contemporary discussions of these verses, or in the distribution of charity funds, this category is routinely overlooked.

For example, in his 1991 translation of the classical Shafi’ legal manual Reliance of the Traveller, Nuh Keller removes all English translations of rulings pertaining to slavery and emancipation, claiming the issue ‘is no longer current’ (Ali 2006, p. 51). While this raises fascinating theological questions regarding the purported universality of the Qur’an, it also overlooks that numerous populations and peoples find themselves in slavery-adjacent conditions. That is, while peoples are technically not ‘enslaved’, their situations and contexts are similar to (or in some cases, worse than) enslaved communities of the past. Simply put, many remain in need of emancipation from their oppressive conditions.

From an ILT perspective, this discursive focus on emancipation cannot abide. Islam cannot simply be a conduit for discussing the past but must become the basis upon which we are able to build new futures. To argue that these issues are ‘no longer current’ is not only to misunderstand the current moment in which we find ourselves; moreover, it is a betrayal of the emancipatory potential of Islam. In this sense, I argue that a serious engagement with prison abolition discourses is a natural continuation for a theological tradition with such a strong precedent of emancipatory impetus.

Prison abolitionists contend that large scale incarceration harm societies more so than help (Davis 2005). The idea, of course, is not to swing open the doors of penitentiaries so that dangerous individuals are free to roam the streets. There is certainly the possibility that specific institutions in which violent individuals are separated from the remainder of society continue to exist.

Rather, the primary focus of prison abolitionist thinking centres around the idea that prisons are obsolete and archaic forms of infrastructure that tend to criminalize poverty, mental health disorders, homelessness and generally sweep away those that have slipped through the cracks of ‘polite’ society (Dubler and Lloyd 2020). For example, in the UK, the majority of prisoners are currently incarcerated for non-violent offences (Prison Reform Trust 2022).

In place of continually encaging human beings, often with large corporations actively profiting from such, funds can be focused on housing, education, and health care to provide the structural apparatus to avoid the need for so many prisons to be built. This is especially significant when considering that the cost for every prisoner per year (2020–2021) in the UK was approximately £47,000 (Prison Reform Trust 2022). The abolitionist argument follows that the billions of pounds that are currently being spent to encage human beings could be used in a far more efficacious manner to build up preventative measures to mitigate against the need for prisons.

From a theological perspective, the question is raised regarding how Islamic initiatives could support the push for prison abolition. For example, could Zakat be distributed to support those who are imprisoned? Could madrassas raise sadaqa funds to initiate mentorship programmes for those at risk of falling into criminality? Is there a possibility for mosques to provide support groups and community scaffolding to mitigate against potential (re-)offending?

For the sceptic, the argument may be raised that the recipients of charity in Islam were certainly those who were impoverished, needy and in bondage. However, there are no references to those who have committed crime within the traditional heritage of exegesis and legal commentary. While such a statement is historically factual, it evinces a superficial understanding of criminality, racism, and the prison–industrial complex in its current manifestation.

Let us consider the USA—which currently houses the biggest prison population in the world (almost two million people). Research points to the emergence of carceral systems in the USA as intimately linked to racist systems of control and brutalization (Davis 2005; Blackmon 2009; Alexander 2010; Dubler and Lloyd 2020). The US civil war that centred around the abolition of slavery in the 1860’s did not upend racism and exploitation. Following the emancipation proclamation in 1863, new systems were devised by White elites to exploit Black communities for economic gain. Without the abusive mechanism of slavery to rely upon, many Southern states teetered on the edge of economic collapse.

To mitigate this, and to retain some form of the previous order, many states adopted measures to reintroduce slavery in another guise. For instance, states adopted ‘vagrancy laws’ which ‘essentially made it a criminal offense not to work and were applied selectively to Blacks—and eight of those states enacted convict laws allowing for the hiring-out of county prisoners to plantation owners and private companies’ (Alexander 2010). Blackmon (2009) highlights how in this period thousands of African Americans were arrested on capricious charges, fined arbitrarily and ultimately compelled to work off the fines to secure their release.

Prisoners were often sent as forced labourers to various sites to complete gruelling work on railroads, farms, plantations etc. Alexander (2010) notes that these new circumstances could perhaps be described as worse than slavery. This is due to private contractors showing no concern for the health of their laborers, unlike slave-owners who at the bare minimum wanted to protect their investment, which ultimately led to higher death rates in the post-abolition period.

This new order came to be known as Jim Crow. According to the new system, virtually every Southern state had established laws that sought to disenfranchise Black communities across all spheres of life, which created a racial paradigm that extended ‘to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries’ (Alexander 2010).

It was only after the intense struggle of the Civil Rights movement that culminated in the legal shifts in 1960’s that these laws were challenged and overturned. However, while the abuse of slavery was transformed into Jim Crow, so too were the sentiments that allowed Jim Crow to flourish, transmuted into new language. Many scholars have noted that the shift from the 1980’s onwards towards the ‘War on Drugs’, and the subsequent growth of the ‘prison–industrial complex’, has simply been another iteration of the same exploitative mechanism (Daulatzai 2012).

While the ‘War on Drugs’ may appear racially neutral, the dog-whistles of ‘law and order’, the targeting of geographical areas, and the linking of particular communities with specific crimes all highlight the implicitly racialised nature of the discourse (Daulatzai 2012). Consider Alexander’s provocative claim that more African Americans are currently under correctional control today ‘than were enslaved in 1850, a decade before the Civil War began’ (Alexander 2010, p. 175).

This demonstrates a clear link between the racist brutalisation of communities in the USA and the growth of prisons. While this is clearly an example specific to the USA, it certainly disaggregates the simplistic claim that prisons are set up to reform or rehabilitate unsociable or criminal behaviour, or that prisoners are simply miscreants and lawbreakers. Discourses pertaining to law, order and justice have been manipulated to abuse and exploit Black communities in the USA (Dubler and Lloyd 2020).

However, similar examples can also be found in the UK. The prison population across England and Wales currently ranks amongst the highest in Western Europe and has risen by 70% in the last 30 years (Prison Reform Trust 2022). As with the USA, the UK has increasingly seen prisons becoming privatised, with large corporations such as Serco, G4S, and Sodexo being handed large government contracts (Rifkind 2019).

In a similar trend to the USA ‘justice system’, research demonstrates that within the UK, there was ‘a clear direct association between ethnic groups and the odds of receiving a custodial sentence’ (Prison Reform Trust 2022). Those of particular ethnic backgrounds were 81% more likely to be sent to prison for an indicatable offence from the crown court in comparison to White prisoners. Equally, those of Black and Asian backgrounds were more likely to be serving longer sentences than White prisoners for committing the same crime. Further, the number of Muslim prisoners in the UK currently account for 18% of the prison population, while making up 5% of general population (Prison Reform Trust 2022).

The Islamophobic nature of the judicial system becomes more provocative when considering that the Muslim prison population do not make up a singular ethnic bloc (37% are Asian, 29% are Black, 19% are White). In France, the situation is more striking. While Muslims make up approximately 7.5% of the population, it is estimated that 60% of the prison population is currently Muslim (BBC News 2015).4 This is not even to consider the use of prisons as tools of political repression across the Middle East and wider Muslim world (Quisay 2022).

For the Muslim theologian, there are two options. One is to accept that Black and Muslim minorities across Britain, France and the USA are intrinsically more prone to crime than their non-Muslim/White counterparts (due to genetics or culture?), or the second (non-racist position) is to recognise that the judicial systems across Western nations, as with prisons, are structurally racist and Islamophobic institutions that abuse and exploit minority communities.

If the second option is chosen, it becomes incumbent on Muslim thinkers to grapple with prison abolition in a more serious manner. To this end, promising scholarly discourse has been developing within certain spheres surrounding this topic. In 2018, the American scholars Su’ad Abdul Khabeer and Kecia Ali began a conversation that explored the links between Zakat and freedom from incarceration (Dubler and Lloyd 2020, p. 216). This led to the development of the ‘Believers Bail Out’ initiative in the USA, in which money was raised from Zakat funds to help bail out Muslims in pretrial incarceration and ICE Custody (Immigrations and Customs Enforcement).

The purpose of the Bail Out was to support ‘efforts to abolish money bail and to raise awareness within Muslim communities on the injustices of the bail bond system, immigration bonds, and the broader prison–industrial complex of which they form part’ (Believers Bail Out 2018). To provide theological justification for this, those involved in the project point towards the Qur’anic verse 9:60 which sets out the categories of recipients for Zakat, including ‘those in bondage’. They argue that those trapped within the systems are the modern-day referents of ‘fī al-riqāb’. The initiative began with the intention of raising $30,000 and by the end of Ramadan 2018, they had raised over $100,000 (Dubler and Lloyd 2020, p. 216).

Similarly, in the UK, a Muslim charity entitled the Nejma Collective have organized to raise awareness regarding the injustice of the UK prison system as well as support those who are incarcerated (Nejma Collective 2022). The collective argue that prisons have historically been used to control and discipline ‘poor and working-class people’, specifically ‘repressing and monitoring indigenous Black and brown people who threatened that system of oppression’. They equally note that ‘Muslims are disproportionately behind bars in the UK’ (Nejma Collective 2022).

While Muslim communities have come to recognise the need for chaplaincy to cater for prisoners (Ali 2018), a more meaningful, sustainable, and transformative approach would be to work towards a situation in which prison chaplains are not needed due to the lack of (Muslim or otherwise) prisoners.

Prison abolition should not be viewed only as an interesting discussion; rather, this initiative should be taken on as a matter of urgency for Muslim communities. Referring to the first section of this paper, I argue that such theological activism can stake a greater claim to the historical emancipatory ethos expounded by the legal scholars of the past.

Muslim scholars were once willing to justify the illogical, the blasphemous and the illegal to allow enslaved people to attain freedom. The lack of consideration of human freedom in contemporary Islamic discourse appears a betrayal of the theological legacy that Muslims have inherited. It could certainly be argued that those working towards freeing encaged people today are more representative of the classical emancipatory ethos than those who choose to brandish this legacy simply as an instrument of intellectual jousting.

To re-emphasise this point once more, let us consider a final ruling from the Mabsūṭ of al-Sarakhsī. It reads, ‘If a [slave] from the Abode of War murders his master, steals his wealth and absconds to us, he is considered free and what he has absconded with becomes his own’ (al-Sarakhsī 2001, vol. 10, p. 100). The factors of murder and stealing are not necessary caveats in the injunction but are used to highlight the extent to which the slave may have transgressed. This is to say, even if he is a murderer, and a brigand, he is still considered free. Ostensible criminality, then, was not enough to abstain from granting freedom. In a time in which ‘criminality’ is being used as a tool to exploit the already disenfranchised, the extent to which Muslim theologians remain brave enough to apply the logics of pre-modern Islamic law remains to be seen.

5. Conclusions

In this paper, three key claims were made. Firstly, the paper demonstrates a strong emancipatory trend within the classical legal tradition. Secondly, I highlighted how this emancipatory ethic was read as a call for the legal abolition of slavery, as a system, in the 19th century through the writings of Muhammad Abduh. Finally, I considered how this emancipatory ethic could (should?) be refashioned and reimagined through an engagement with prison abolition discourses.

It is important to consider that all scholars are ultimately shaped by our environments; the languages we speak and the intellectual contexts we find ourselves in. In a time in which slavery was a norm globally, Muslim scholarship facilitated emancipation through the legal mechanisms they had at their disposal. In a world in which abolition became a possibility, groups of Muslim scholars reformulated their worldviews and promoted the abolition of slavery. As oppressive systems continue to adapt and transform—namely, from slavery to mass incarceration—it becomes incumbent on a new generation of Muslim theologians to continue to rise to the challenges presented.

This paper began with a quote from Kitāb Al-Mabsūṭ in which the famous Qur’anic verse is cited, ‘and what will make you realise the steep path? It is liberating the slave’ (Q90:11–12). al-Sarakhsī understood this as referring to the literal manumission of one/many slave(s). In the 19th century, Muhammad Abduh read this to mean the complete eradication of the slave-trade.

The idea that we have now solved the riddle, and indeed realised ‘what the steep path is’ appears far too presumptuous on our parts. Perhaps a more theologically humble approach would be to accept that ‘realising the steep path’ is a process that Muslims will continually have to struggle with. As such, ‘liberating the slave’ remains not a moment, or event in history, but an ethos.

This ethos, however, must be generationally re-actualised. In this sense, the function of the verse, and the metaphor more specifically, may continually be renewed for new places, peoples, and struggles—but the emancipatory ethic will always remain. Promoting freedom, in whatever guise it presents itself, will remain the objective of the divine word (Kalām Allah).