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ويجوز شراء أولاد الْحَرْبِ مِنْهُمْ، كَمَا يَجُوزُ سَبْيُهُمْ.

وَيَجُوزُ شِرَاءُ أولاد العهد منهم، ولا يجوز سبيهم.

كتاب الأحكام السلطانية لأبي يعلى الفراء Page 145

Sorry for asking again same question but couldn't get proper clarity regarding his statement.

What does Imam Abu Ya'ala ibn al-Faraa' al-Hanbali mean by saying it is permissible to buy from Ahlul Ahad but not permissible to capture a proper detailed explanation in a simplified manner?

Regarding Ahlul harb it is clear it is permissible to buy and capture them but this Ahlul 'aahad creates confusion due to the word "ولا يجوز سبيهم". Does Imam mean that it is permissible to buy and set free or he mean if Ahlul 'aahad sell them as slaves it is permissible to buy and keep them as slave but capturing and enslavement are prohibited?

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ويجوز شراء أولاد الْحَرْبِ مِنْهُمْ، كَمَا يَجُوزُ سَبْيُهُمْ.
وَيَجُوزُ شِرَاءُ أولاد العهد منهم، ولا يجوز سبيهم.

So in both cases, the seller is a non-Muslim be it a harby (ahl- al-Harb) or a mu'ahid (ahl al-'Aahd), while the buyer is Muslim.

Having this said it should be clear that:

  • the enslavement of a harby الحربي is permissible after buying them from a non-Muslim. Since there's no treaty between Muslims and these non-Muslims.
  • the enslavement of a mu'ahid المعاهد however is not permissible, since Muslims have a kind of (temporal) agreement, as long as the duration or conditions of the agreement have not ended. This means buying them is permissible to give them back to their families and leader who has an agreement with the Muslim ruler. Since their enslavement by a non-Muslim doesn't declare void their rights declared by the covenant between the Muslim ruler and their leaders.

You may also read this in Hashiayat al-Jamal 'ala sharh al-Minhaj called Futuhat al-Wahhab فتوحات الوهاب بتوضيح شرح منهج الطلاب (see here) where al-Mawardis statement -which is the same as our second statement- was explained:

قال الماوردي يجوز شراء أولاد المعاهدين منهم لا سبيهم
Al-Mawardi said that it is permissible to buy the children of covenants (Mu'ahids) from them, not to take them captive.

In fact there's a dispute on which of both was the first to write a book on al-Ahkaam as-Sulltaniy al-Mawardi or ibn al-Faraa', since both lived at the same period. It seems that al-Mawardi however had the opportunity to see ibn al-Faraa's book, so abu Ya'ala has started compiling his book first.

Note that in the following quotes, there's a high relevance and reference to the topic of Sales in Islamic fiqh and since I'm not well-versed in this topic my translation will not be exact or good enough, take this into account! Feel free to correct me where I went wrong.

Sheikh Sulaiman al-Jamal (died 1204 a.H.) explained this statement quoting:

ارتضاه شيخنا الطبلاوي - رحمه الله - قال ويقدر الرق قبيل الشراء كما يقدر الملك قبيله في اعتق عبدك عني بكذا إلخ...
Our Sheikh al-Tablawi - may Allah have mercy on him - agreed with this statement. He said: Slavery is estimated before purchase just as ownership like saying free your servant from me with such and such, etc. ...

See also here in ibn Hajar al-Haythami's a-Tuhfa where the same example was mentioned.

...بخط الشيخ خضر الشوبري وبعضهم صور المسألة بأن يستولي بعضهم على أولاد غيره لكن على هذا يكون الرق حقيقيا لا تقديريا.
In the handwriting of Sheikh Khidr al-Shubari you find... and some of them depicted the issue by saying that some of them seize the children of others, but based on this, slavery is real and not discretionary.
وعبارة الشوبري قوله يجوز شراء أولاد إلخ هل المراد أن يستولي بعضهم على أولاد بعض آخر ثم يبيع من استولى ما استولى عليه لا أن المراد استيلاؤه على أولاد نفسه لأنهم يعتقون عليه حينئذ فلا يصح البيع ويرد بأن عقد الهدنة يمنع من ذلك كما منعنا من سبيهم ثم رأيته في التحفة في أول كتاب البيع أفصح عن كلام الماوردي بما يتعين الوقوف عليه وكذا شيخنا في شرحه والله أعلم انتهت ونص عبارة التحفة.
And Al-Shubari’s phrase, when he said it is permissible to buy children, etc., is what is meant by some of them seizing the children of others and then the one who seized sells what he seized? Not that what is meant is him seizing his own children because they will be freed from him in that case, so the sale is not valid. He responds that the truce contract prevents that, just as we prevented them from taking them captive, and then I saw it. In Al-Tuhfa(a book of ibn Hajar al-Haythami, at the beginning of the Book of Sales, he explained Al-Mawardi’s words in a way that must be understood, and so did our Sheikh in his explanation, and Allah knows best. The text of Al-Tuhfa has ended.

Please find the statement of a-Sharwani in the commentary of a-Thufa here.

Further al-Jamal made the following remark and explained in detail the case of a non-Muslim father selling his child:

(تنبيه) يرد على المتن وشارحيه قول الماوردي يجوز شراء ولد المعاهد منه وتملكه لا سبيه لأنه تابع لأمان أبيه اهـ
(Attention) it is mentioned in the text and its commentators Al-Mawardi’s statement that it is permissible to buy the son of the covenant from him and own him, not captive him, because on him applies the trust asserted to his father.

In other words, the meaning of these statements -according to sheikh Sulayman ibn 'Umar ibn Mansur al-'Ajeeli also known as al-Jamal سليمان بن عمر بن منصور العجيلي and the other quoted scholars- is that the father of the potential slave is the seller in these cases.

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  • جزاك الله خيراً Commented Mar 26 at 6:55

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