Relation between criminal law and slavery

Question

In this answer it is claimed that

In Islam the idea behind slavery is that the criminal, or enemy combatant's expenses are paid by his/her owner while the slave is expected to work for the owner.

As such it is seen as a better alternative to a prison system in which the expenses are paid by a group of people who have no control over him/her and in which the prisoner therefore might not be required to work.

This suggests that slavery is an alternative to prison as part of the criminal law system in Islam. However, this answer claims that only prisoners of war can be enslaved. This brings up the questions:

Which criminal offenses are punished with enslavement in Islam, if any? Is there any relation between slavery and criminal law as suggested in that answer?

Answer 1

Medi1Saif's answer is correct. The only mode of enslavement that is permissible under Islam is the enslavement of prisoners of war, if the ruler chooses that.

From IslamQA:

Islam limited the sources of slaves that existed before the beginning of the Prophet’s mission to one way only: enslavement through war which was imposed on kaafir prisoners-of-war and on their womenfolk and children.

The Hadith-e-Qudsi which outlaws enslavement of a free person is:

Narrated Abu Huraira: The Prophet (ﷺ) said, "Allah says, 'I will be against three persons on the Day of Resurrection: -1. One who makes a covenant in My Name, but he proves treacherous. -2. One who sells a free person (as a slave) and eats the price, -3. And one who employs a laborer and gets the full work done by him but does not pay him his wages.' " Saheeh Bukhari

Criminal punishments in Islam include lashes, amputation, execution, imprisonment, qisas (retaliation) and diya (monetary compensation) and all of them are proven in the Quran. There is no case of enslavement of a free person for any crime recorded in the Quran, Hadith or actions of the Sahabah nor do any schools of thought allow any such punishments as far as I know.

A bit off-topic, but keep in mind though, that this does not mean that enslavement is an obligatory sanction ... its a valid choice that the caliph has because that was the custom and norm of the ancient times when Islam was revealed and Islam does not force the state to act as a sheep in a world full of wolves. Other options that the caliph has include ransoming the prisoners or setting them free as a gesture of good-will. Also enslavement is only an option when the conquered territory chose war instead of Jizyah, or the other options that a territory may be given when conquest was to be made.

Further, prisoners of war who accept Islam are not to be enslaved (quote from Hidaya):

The person among them who converts to Islam, the meaning being in dar-al-harb, he protects himself through his Islam, because Islam negates the commencement of enslavement, and his minor children too, as they become Muslims as a consequence of his Islam. He also preserves all the (moveable) wealth that is in his possession.

And Muslim prisoners of War (rebels) are not to be enslaved, Hidaya :

Their families will not be enslaved nor will their wealth be (taken as spoils) and divided up be. This is based on the saying of Ali (God be pleased with him) during the Battle of Jamal: "No prisoner will be slain, the privacy of families will not be violated and wealth not taken." This is treated as a model in such cases. His statement about prisoners is construed to mean "when they do not have a supporting group." If there is such a supporting group, the imam is to execute the prisoner, but if he likes he can imprison him, due to what we have said, for these people are Muslims and Islam grants protection to life and wealth.

My humble opinion is that the above points negate the possibility of enslavement of a common criminal ... since a Dhimmi is never enslaved, nor a rebel Muslim.

Answer 2

In my answer to the linked Question, I did not elaborate on conditions where Slavery is permitted. I will try not to go off-topic, so let me elaborate.

The broader definition of crime includes breaking of treaties, this is "inter-national" crime conducted by either signatories. This therefore permits Muslims to declare war and thereafter having the option of capturing the criminals as slaves.

With the above being said, the same applies to criminals such as the cartel, who have created their own armies. The gangs that infest America, who have created their own armies also, warring against the state, and against the people.

Prisons are filled with such cases. US prison population for example is, almost the same size as NZ population. The expenses of these prisoners are paid by the victims (tax payers). Imagine your daughter is killed, and then your tax money goes to feed, cloth, house and entertain the monster that killed her. I'm sorry that you find that rational, or justified, or logical.

Consider the fact that slaves in Muslim societies did not meet the same horrid situation as slaves in some other societies.

Source: Jami` at-Tirmidhi

"I heard Sulaim bin 'Amir saying: 'There was a treaty between Mu'awiyah and the people of Rome. He was making an expedition into their lands so that when the period of the treaty was expires he would attack them. So when a man upon an animal' - or - 'upon a horse said: "Allahu Akbar! Fulfillment not betrayal!" - and it turned out to be 'Amr bin 'Abasah - Mu'awiyah asked him about that. He said: "I heard the Messenger of Allah (ﷺ) said: 'Whoever has a treaty between himself and a people, then let him not violate the treaty nor try to change it until its time has passed, or , in retribution for a similar offense.'" He said: "So Mu'awiyah returned with the people."

You can't go to war unless treaty is violated, or there is no treaty between the two parties. These are conditions which allows declaration of war. Without declaration of war, no one can be taken as slave, neither women, nor children, nor men. So yes, breaking a treaty is a requirement.

Islam doesn't deal with a nation at individual human level, rather as a whole. Just like US didn't deal with the Japanese at individual human level when Japan was nuked. There are special cases though.

Regarding children "not breaking" the treaty. Those children killed in the nuking of Japan didn't break any treaty either. The comparison is made to help you better understand.