Slavery, Slave Trading and the Law in the Pre-Islamic Middle East

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20 Chapter 1

Chapter 1 Slavery, Slave Trading and the Law in the Pre-Islamic Middle East

Map 1.1 The Ancient Middle East (including the Indus Valley). Map drawn by Mujahid Khan

When the Prophet Muhammad received the first revelations that ultimately led to the promulgation of the Qurʾan and the emergence of the new religion of Islam, slavery and slave trading were central features in human life and society.1 The practice of slavery flourished at that time in practically all of the

1 The use of the term “Middle East” for this chapter is somewhat inexact. Hodgson argued that historians ought to use the phrases “lands from Nile to Oxus” or “Nile to Oxus region” to describe the region and the phrase “Irano-Semitic” to describe the cultural complex that existed in the pre-Islamic era. Hodgson, The Venture of Islam, 1:115n8, 1:117n9. Hodgson’s suggested “Irano-Semitic” nomenclature is also inexact in my view, as it does not recognize the presence of Egyptian, Sudanic, and East African languages and cultures in the complex. I will therefore use the term “Afro-Irano-Semitic” to describe the cultural complex of the peoples inhabiting

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Slavery, Slave Trading And Law In Pre-islamic Middle East 21

communities on the Arabian Peninsula, in the larger Middle Eastern region, and, indeed, throughout most of the known world.2 Evidence drawn from legal, archaeological, and literary sources suggests that the institution was characterized by a great multiplicity of rules, norms, and practices.3 This array of rules, norms and practices can be rather daunting for the legal historian. Some years ago, Moses Finley, the great historian of the Greco- Roman classical world, warned that, in any inquiry like this one, the inquirer must first carefully define what he or she means when using the words “slave”

the region. I have, on the other hand, chosen to largely stay with the geographical term “Middle East” to describe the region, even though the “Nile-to-Oxus” nomenclature is probably more accurate. This is because the term “Middle East” is very familiar to most readers and to use another term will cause geographic confusion. When I use the term “Middle East” in this book, therefore, I mean to describe the lands between the Nile River and the Oxus River, including the shores of the eastern Mediterranean, the Red Sea, the Persian Gulf, and the western Indian Ocean between what is today Somalia and the west coast of India (sometimes described as the Arabian Sea). As the geographical reach of the story expands beyond the “Middle East,” as I have defined it, (which would exclude, for example, West Africa, or lands along the Silk Roads east of the Oxus River) I will use the term “Afroeurasian,” denoting an area larger than the Middle East. I will also use the term “Indian Ocean world” and this description will sometimes overlap with my descriptions of the Middle East. The term “Indian Ocean world” describes the entire littoral of lands around the ocean, including East Africa, lands along the shores of the Red Sea, the Arabian Peninsula, the Persian Gulf, Iran, and the western and eastern coasts of India, as well as what is today Bangladesh, Myanmar, Thailand, and the Southeast Asian Archipelago. All of these locales are highly relevant to any discussion of slavery and slave trading in the Muslim world. For further elucidation, please consult Maps 1.1 through 8.2. 2 Seymour Drescher, Abolition: A History of Slavery and Antislavery (New York: Cambridge University Press, 2009), 7; Daniel C. Snell, “Slavery in the Ancient Near East,” in The Cambridge World History of Slavery, ed. Keith Bradley and Paul Cartledge (New York and Cambridge, UK: Cambridge University Press, 2011), 1: 6; Various authors, “Ancient Middle East,” in Macmillan Encyclopedia of World Slavery, ed. Paul Finkelman and Joseph C. Miller (New York: Macmillan Reference USA, 1998), 1: 63–70; Junious P. Rodriguez, “Introduction: Slavery in Human History,” in The Historical Encyclopedia of World Slavery, gen. ed. Junious P. Rodriquez (Santa Barbara: ABC-CLIO, 1997), 1: xiii; Laura Culbertson, ed., Slaves and Households in the Near East (Chicago: Oriental Institute of the University of Chicago, 2011). 3 On archaeological sources on the existence of slavery see, e.g., Ian Morris, “Archaeology and Greek Slavery,” in Bradley and Cartledge, Cambridge World History, 1: 176–193; Peter Mitchell, ed., The Archaeology of Slavery (London: Routledge, 2001); Lydia Wilson Marshall, ed., The Archaeology of Slavery: A Comparative Approach to Captivity and Coercion (Carbondale, Ill.: Southern Illinois University Press, 2015); Frederick Hugh Thompson, The Archaeology of Greek and Roman Slavery (London: Duckworth, 2003); Sandra R. Joshel and Lauren Hackworth Peterson, The Material Life of Roman Slaves (Cambridge, UK: Cambridge University Press, 2014); Paul Lane and Kevin C. MacDonald, eds., Slavery in Africa: Archaeology and Memory (Oxford, UK; New York: Oxford University Press, 2011); Elizabeth N. Arkushard and Mark W. Allen, eds., The Archaeology of Warfare: Prehistories of Raiding and Conquest (Gainesville: University Press of Florida, 2006).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 22 Chapter 1 and “slavery” as historically descriptive concepts. There were many relationships described or depicted in ancient and medieval sources that might look like slavery to the modern observer but were actually not within ancient and medieval understandings of the concept. Ancient forms of marriage, certain parent–child relationships, and many debtor–creditor arrangements were among such affinities. On the other hand, a soldier in an ancient army might not be described as a slave in the sources but, in fact, he was owned, “lock, stock and barrel,” so to speak, by the head of state or the military commander and therefore had no individual freedom in any real sense. Although he might have functioned as a soldier in his daily life, he was, in reality, no more than a human chattel, albeit sometimes a well-armed and very dangerous chattel, but human property nonetheless. One scholar has observed that it is “difficult to create a definition of slavery comprehensive enough to cover all social institutions generally classified as slavery yet sufficiently clear to distinguish it from other forms of dependence.”4 This is certainly true of the ancient and medieval worlds and such difficulties makes any effort to craft a legal history of old-world slavery—in any culture, and certainly in Muslim cultures—problematic. To ensure a modicum of accuracy, the historical understandings employed must therefore be as free of “faulty classifications” based on “faulty theory, or at least inadequate conceptu- alization” of the classifications as we can make them.5 Such “faulty classifications” and “inadequate conceptualizations” are problematic primarily because they tend to impose modern understandings and definitions of slavery on ancient and medieval relationships. I will endeavor to avoid this problem by making sure that the terms describing slavery employed in this book are used in the same context and with the same meaning, as best as can be discerned, as was probably understood by the persons involved in the practice. The sources containing these terms, usually religious texts, written legal codes, legal documents used in practice, administrative and commercial records, inscriptions and artwork on monuments, and some literary sources, like papyri and letters, are very often notoriously terse, difficult to decipher, and unevenly recovered by scholars.6 The reader should understand these difficulties and therefore not read too much into the sources. Sometimes we will just not know what the context was. I will do my best to make sure the sources are not misused or over- historicized in such cases. The reader may also find that definitions and

4 Ruth Mazzo Karras, Slavery and Society in Medieval Scandinavia (New Haven: Yale University Press, 1988), 5. 5 Moses I. Finley, Ancient Slavery and Modern Ideology, ed. Brent D. Shaw, exp. ed. (Princeton: Markus Wiener Publishers, 1998), 137. 6 Cultbertson, Slaves and Households in the Near East, 1, 3–4.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 23 conceptions of slavery have changed over time, both in the Islamic world and in other societies, and that definitions and conceptions were varied, depending on the locale and the culture. The first step, then, is to understand, as best we can (given the sources), the conceptions of slavery as they were contemplated in the Afro-Irano-Semitic legal cultures that predated Islam and were practiced in the pre-Islamic Mid- dle East. The pre-Islamic conceptions and practice of slavery in the Afro-Irano- Semitic legal cultures in the Middle East had a significant impact on the practice as it emerged in the Islamic era. Even though this impact was substan- tial, with the advent of Islam conceptions of slavery in society, especially legal and political conceptions, changed quite radically in many of the locales that came under the aegis of Islamic law and jurisprudence. This change was para- doxical because, while the changes worked by Islamic law were important, progressive, and sometimes groundbreaking, other aspects of the practice did not change, sometimes in spite of the law, and this paradox continues to plague Muslim communities today.

1 Origins of Slavery

It is impossible to definitively say how, when, or why human beings first began to enslave one another. The key element in these ancient conceptions of enslavement was the notion of ownership. The sociologist Orlando Patterson has persuasively argued that the key element in ancient master–slave relationships was not ownership but rather the notion of power.7 He defined slavery as “the permanent, violent domination of natally alienated and generally dishonored persons.”8 With its emphasis on domination, this definition purposefully excluded the legal concept of ownership from the understanding of slavery. Responding to criticism asserting that his exclusion of notions of ownership was problematic and dangerously ahistorical, Patterson recently modified his definition to incorporate a legal dimension, contending that slavery is “the violent corporeal possession of socially isolated and parasitically degraded persons.”9 If we use an exclusively sociological approach in understanding en-

7 Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge, MA: Harvard University Press, 1982), 21–22. 8 Ibid., 13. 9 Orlando Patterson, “Trafficking, Gender and Slavery: Past and Present,” in Allain, Legal Understanding of Slavery, 329. There has been and continues to be healthy and robust academic discussion and criticism of Patterson’s theses. See, e.g., John Bodel and Walter Scheidel, On Human Bondage: After Slavery and Social Death (Chichester, West Sussex; Malden, MA:

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 24 Chapter 1 slavement, the concepts that Patterson employs—permanence, possession, violence, alienation or isolation, and dishonor—are all excruciatingly accurate in describing most cases of ancient slavery. However, from a legal perspective, it was the abstract idea of ownership that universally enabled ancient masters to convince ancient slaves, and all others in ancient societies, that he or she or they had the right and privilege to exercise the power of enslavement over the other person or persons. Although violence, both physical and psychological, often enabled the exercise of power over slaves, that use of violence had to be rationally justified. Not long after human beings first developed a concept of property and came to recognize legal ownership of animals, inanimate things, and land, they began to surmise that they could also own, in the same legal sense, another human being. Such conceptions of ownership might contemplate a collective or communal right of ownership of the slave or slaves, that is, ownership by a group of persons of another group of persons or an individual. Most frequently, however, the right of ownership of the slave was possessed by an individual person who claimed a superior dominium and legally enforce- able right of control of the slave as against everyone else in the world. Within a few generations this notion of ownership of human beings developed into a variety of established institutions and practices recognized and protected by ancient legal systems in the same way that ownership of land, things, and animals was protected. Thus, the essence of most, if not all, ancient definitions of slavery is the idea of ownership of one human being or group of human beings by another human being or group of human beings. The rapid growth of the practice of slavery and its development into firmly established legal institutions in these societies similarly cannot be ascribed to one cause or set of causes. Many social historians and anthropologists trace the origins of the institution of slavery to ancient social practices employed to remedy dysfunctional familial relationships. The despised or unwanted brother, like Joseph in the Bible, was not killed or disabled; rather, he was enslaved, or sold into slavery. Other scholars ascribe the institution’s beginnings to a societal need to control the movement, activities, and labor of prisoners of war. Slavery was a convenient way to punish an enemy for taking up arms; it enabled the victor to exact retribution and to subjugate and humiliate the enemy while avoiding killing him. Hence the legal ownership of another human being was often viewed and justified as a humane alternative to death. Still others

John Wiley & Sons, 2016); Patterson, “Trafficking, Gender and Slavery,” 322–359; Kevin Bales, “Professor Kevin Bales’ Response to Professor Orlando Patterson,” in Allain, Legal Understanding of Slavery, 360–372; Orlando Patterson, “Rejoinder: Professor Orlando Patterson’s Response to Professor Bales,” in Allain, Legal Understanding of Slavery, 373–374.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 25 suggest that it was a way for societies to manage their relationships with foreigners and other outsiders. By enslaving the “other,” the society made sure that he or she remained distinguishable from those in the “in-group,” the citizens or believers or landowners, or people otherwise entitled to privileged status.10 Whatever their origins, the earliest conceptual paradigms for slavery drew their primary frame from relationships between humans and domestic animals.11 The key element in these conceptualizations was also the notion of ownership. As Finley remarked, “[a]s a commodity, the slave is property…. [T]he fact that a slave is a human being has no relevance to the question whether or not he is also property; it merely reveals that he is a peculiar property, Aristotle’s ‘property with a soul….’”12 Finley was describing the paradigm of slavery as it existed in ancient Greece, but this paradigm also seems quite similar to older conceptions of slavery as they existed in the legal cultures in the ancient Middle East. In early legal texts from the region there was a clear analogy drawn between the position of the slave, especially the domestic slave, and the position of the donkey, the cow, or the horse.13 Although the ancient law also recognized the slave’s humanity, sometimes crafting elaborate reme- dies and permitting slaves to own property and transact business, the Middle Eastern slave, like the domestic animal, remained primarily a species of personal property that could be bought, sold, leased, inherited, given as a gift and exploited, sometimes to extremes.14 Aristotle’s famous dicta that the slave is nothing more than a “human tool” or a “poor man’s ox” sums up this approach, aptly describing the attitudes that the ancients had toward their slaves.15 The concept of the slave’s position as being analogous to that of the domestic ani-

10 See David Brion Davis, “At the Heart of Slavery,” in Davis, In the Image of God, 123–136. See also Patterson, Slavery and Social Death, 106; Davis, Slavery and Human Progress, 8–13; David Turley, Slavery (Oxford: Blackwell, 2000), 14–61. 11 Karl Jacoby, “Slaves by Nature? Domestic Animals and Human Slaves,” Slavery and Aboli- tion 15:1 (1994): 89–99; Keith Bradley, “Animalizing the Slave: The Truth of Fiction,” Journal of Roman Studies 90 (2000): 110–125 (citing Aristotle, Politics, trans. Trevor J. Saunders (Ox- ford, UK: Clarendon Press, 1995), Book 1, 1254a17–1254b39). 12 Finley, Ancient Slavery and Modern Ideology, 141 (citing Aristotle’s Politics 1253b32). 13 Muhammad A. Dandamaev and Vladimir G. Lukonin, The Culture and Social Institutions of Ancient Iran (Cambridge, UK: Cambridge University Press, 1989), 153. 14 Dandamaev and Lukonin, Ancient Iran, 153; Raymond Westbrook, “Slave and Master in Ancient Near Eastern Law,” Chicago-Kent Law Review (70) (1994–1995): 1631–1676; H.W.F. Saggs, Babylonians (Norman: University of Oklahoma Press, 1995), 56. 15 Aristotle, Politics, 1253b32, 1252b12.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 26 Chapter 1 mal was nearly universal in the world’s legal systems and it was an important aspect of the slavery paradigm in the ancient Middle East as well.16

2 Greco-Roman/Hebrew Historiographic Dominance

Much of the legal historiography on ancient slavery in Western languages has focused on the laws and practices in Greece and Rome, and, to a lesser extent, the law and practice of the ancient Israelites.17 This focus has evolved because slavery in the Western Hemisphere provided fruitful ground for comparison with Greek and Roman paradigms, particularly the Roman system, with its large latifundial plantations in Italy, great numbers of slaves, and elaborate slave codes.18 Roman slavery is the old-world system of slavery that we West- erners know the most about. The legal historiography tends to divide the study of Roman slavery into three great sections—slavery found in the early republic and the “High Empire,” extending from 30 BCE to 235 CE, slavery found in the later empire, including the empire of Constantine and its legacy of codifica- tion, extending from 235 CE until 476 CE, and lastly, slavery during the Byzan- tine period, or the period of the “Eastern Roman Empire,” particularly the legal reforms carried out by the emperor Justinian I (r. 527–565 CE), and the evolution of Byzantine slavery under the influence of Christianity. The Byzantine period can be said to have lasted until the fifteenth century, when the empire fell to the Ottomans, but my concern will be with early Byzantine slavery. Be- cause of Byzantium’s imperial domination of and commercial intercourse with the great medieval cities of the Arabian Peninsula, particularly Damascus, Palmyra, Jerusalem, and Aden in the south, scholars have characterized ac-

16 Davis, Slavery and Human Progress, 13; Bradley, “Animalizing the Slave: The Truth of Fic- tion,” 110–125. 17 See William L. Westermann, The Slave Systems of Greek and Roman Antiquity (Philadel- phia: The American Philosophical Society, 1955); Finley, Ancient Slavery and Modern Ideol- ogy; W.W. Buckland, The Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian (Cambridge: Cambridge University Press, 1908); Allen Watson, Roman Slave Law (Baltimore: Johns Hopkins University Press, 1987); Keith Hopkins, Con- querors and Slaves (Cambridge and New York: Cambridge University Press, 1978); Keith Bradley, Slaves and Masters in the Roman Empire: A Study in Social Control (Brussels: Lato- mas, 1984); Keith Bradley, Slavery and Society at Rome (Cambridge, UK: Cambridge Uni- versity Press, 1994); Gregory C. Chirichigno, Debt-Slavery in Israel and the Ancient Near East (Sheffield, UK: JSOT Press, 1993); Catherine Hezser, Jewish Slavery in Antiquity (New York: Oxford University Press, 2005); Ze’ev W. Falk, Hebrew Law in Biblical Times: An Intro- duction (Jerusalem: Wahrmann Books, 1964). 18 Watson, Roman Slave Law, xvii–xix, 1–6.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 27 counts of late Roman and early Byzantine slavery as important in understanding the later developing Muslim practices of slavery and slave trading. I will therefore spend some time in dealing with the Byzantine imperial, economic, and cultural legacy.19 Indeed, as I noted earlier, some have argued that the Muslims borrowed much from the rules on slavery imposed on provincial populations by the Romans and the Byzantines.20 This is a controversial point, with many others arguing that any allegation of borrowing requires the exercise of “great care” in the methodology used and in the acceptance of that conclusion.21 My purpose in this chapter is not to definitively prove or disprove that the Muslims borrowed from other legal systems but, rather, to show the presence of important similarities that existed in each of the relevant legal cultures, similarities that would suggest influences on more universal understandings of slavery that developed out of the practice in those cultures. The late Roman and early Byzantine legal conceptions of slavery will therefore be significant although, as I suggest below, such conceptions may be over-emphasized in the historiography of the Muslim practice of slavery and slave trading. Historians of ancient Israel and of the Hebrew Bible (the “Torah”) have also devoted considerable scholarship to describing and analyzing slavery in ancient Israel and among the ancient Hebrews.22 Indeed, the Hebrew law and practice of slavery provides additional important historical background in gaining an understanding of the Islamic law and practice that evolved. The Jewish and Islamic religions both take a very similar approach to the herme- neutical relationship between sacred texts and the law. The Hebrew texts, like the Islamic texts, spend considerable time legislating and instructing the believers on their relationships with slaves, on the treatment of slaves, and on the

19 For an excellent study of Byzantine slavery see Youval Rotman, Byzantine Slavery and the Mediterranean World, trans. Jane Marie Todd (Cambridge, MA: Harvard University Press, 2009). I rely quite heavily on Rotman’s account in contrasting the Byzantine and Islamic systems. 20 Patricia Crone, Slaves on horses: the evolution of the Islamic polity (Cambridge, UK and New York: Cambridge University Press, 1980); Patricia Crone, Roman, Provincial and Is- lamic Law: The Origins of the Islamic Patronate (Cambridge, UK: Cambridge University Press, 1987). 21 Liebesny, “Comparative Legal History: Its Role in the Analysis of Islamic and Modern Near Eastern Institutions,” 38; Hallaq, “Review: The Use and Abuse of Evidence: The Question of Provincial and Roman Influences on Early Islamic Law,” 79–91. 22 Catherine Hezser, Jewish Slavery; Boaz Cohen, Jewish and Roman Law: A Comparative Study (New York: Jewish Theological Seminary of America, 1966); Dale B. Martin, “Slavery and the Ancient Jewish Family,” in Shayne J.D. Cohen, ed., The Jewish Family in Antiquity (Atlanta: Scholars Press, 1993), 113–129; Muhammad Dandamaev, “Slavery in the Old Testa- ment,” in David Noel Freedman, ed., The Anchor Bible Dictionary (New York: Doubleday, 1992), 6: 62–65.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 28 Chapter 1 means for the emancipation of slaves.23 There were a number of thriving Jew- ish communities living on the Arabian Peninsula, in Ethiopia, in the Levant, and in Iraq and Iran throughout the periods I will consider. It will be important to consider the influence of these communities and their legal cultures on the development of the Islamic law and practice of slavery. Again, some have argued that much was borrowed by the Muslims from the Hebrew law while others vigorously contest the point. No matter how one comes out on this issue, there is no doubt that the Hebrew law played a role in shaping conceptions and understandings of slavery in the Muslim entities that evolved in the early days of Islam. It should be noted that the histories of Hebrew slave law and conceptions of Jewish slavery are quite curiously intertwined with the history of Roman slave law in the Middle East. This is likely because of the colonial relationship between the Roman imperium and Jewish communities in what is today modern Palestine. What might appear at first blush to be a rule of Jew- ish law often turns out to be a rule imposed by the Roman imperium on Jewish communities. This fact gives specific credence to the argument that special care must be exercised before one concludes that the law of one system was in fact “borrowed” by jurists and promulgators of the law in another system. Because of the fascination with Greece, Rome, and ancient Israel in western legal, philosophical, and historiographic discourse, the historiographies of the Greco-Roman and Hebrew systems of slavery and slave trading—historiographies that I call Mediterrano-centric—have tended to dominate the approach- es legal historians have taken in seeking to understand the Islamic system. A central thesis of this book is that this dominance, while important, has caused an under-appreciation of other influences—derived from other systems and inhabiting several other important geographic regions—influences that have had just as profound an impact on the development of Islamic ideas and conceptions of slavery. I describe these other influences as “Afro-Irano-Semitic.” These influences were centered around the Indian Ocean, and the cultures and societies associated with that body of water and its estuaries, as well as cultures associated with peoples who inhabited the Eurasian land mass to the east of the Arabian Peninsula, rather than peoples and cultures associated with the Mediterranean Sea. It is an understatement to say that geography is extremely important in understanding the history of slavery and slave trading in relation to world history. The history of slavery and slaving in the Western Hemisphere is inextricably bound up with the geographies of the Atlantic Ocean and its shorelines. The

23 See, e.g., Genesis 17:12–13; Exodus 21:1–11; 22:2; Deuteronomy 15:12–18; 20:10–11; Leviticus 39–55.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 29 history of slavery and slave trading in the Muslim world is similarly bound up with complex geographies but the tendency has been to examine that history exclusively through a Mediterranean lens. I argue that the key geographic locus for the study of slavery and slave trading in the Muslim world should not be the Mediterranean. Rather, it should be the geographies of the Indian Ocean, including the East African coast, the Arabian Sea, the Indian Ocean littorals, and the islands of Southeast Asia, as well as, to a somewhat lesser extent, the Eur- asian land mass from Iraq to Northeastern China.

3 The Importance of Afro-Irano-Semitic Influences on Slavery in the Middle East

The slave systems and practices that made up the Afro-Irano-Semitic complex are those that were extant in ancient and late antique Mesopotamia, as well as those found in Egypt, the Sudan, Ethiopia, East Africa, Nabataea, the Persian Gulf, Iran, Transoxiana, and India. These influences have been significantly overlooked in crafting historical and legal understandings of slavery in the region.24 The Afro-Irano-Semitic complex was centered on the Indian Ocean and its estuaries, including the Red Sea and the Persian Gulf, as well as the Eurasian land mass, especially those lands bordering the ancient Silk Road. In our inquiry it will be useful to consider the Afro-Irano-Semitic influences first, as they are much older than the Greco-Roman systems and are at least as old as the Hebrew systems. In point of fact, these indigenous African, Middle East- ern, and Indian systems predated the Greek and Roman systems by almost three millennia. Further, Rome (as well as Greece before it) was a colonial power in the region and therefore its juridical authority was imposed on its Middle Eastern, African, and Asian subjects from the outside. The practice of slavery and slave trading in pre-Islamic Arabia consequently owes just as much, in terms of its origins, to the indigenous practices found in Africa, Mesopotamia, Iran, and India, as these communities had extensive contact with the pre-Is- lamic Arabs. One should not ignore the influence of the Jewish law as it was also indigenous and as old as the African, Middle Eastern, and Indian systems, but, like the Greek and Roman systems that came later, the Hebrew system was primarily a Mediterranean phenomenon. By contrast, what ties the other

24 Note that Volume 1 of the recently published Cambridge World History of Slavery (entitled “The Ancient Mediterranean World”) begins with a short piece by Daniel C. Snell on the Ancient Near East and then focuses all of its attention on the Greek, Roman and Jewish histories.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 30 Chapter 1 ancient legal cultures I have identified to each other, and to the Islamic culture that emerged from them, is a strong relationship with the peoples of the Indi- an Ocean and its estuaries, the Red Sea, and the Persian Gulf, as well as the East African coast. There were also great influences from the cultures and mercantile practices along the Silk Road on the Eurasian land mass, stretching from Damascus and Western Anatolia through the Central Asian steppes to North- eastern China. I argue that, in considering the development of the law of sla very and a slave-holding culture in Muslim lands, the role of the Indian Ocean and its two important estuaries, and the cultures and legal systems associated with it, as well as the Central Eurasian land mass, and the cultures and legal systems associated with it, were clearly preeminent and just as important as the role played by the Mediterranean Sea and the cultures and legal systems that bordered that body of water.

4 Slavery and Slave Trading in Pre-Islamic Middle Eastern Civilizations

4.1 Mesopotamia The Hebrew Bible (Gen. 24:10) refers to an area where a servant or house slave of Abraham was sent in search of a wife for Abraham’s son, Isaac. The area is described as ǎram͗ nahǎrayim, meaning “Aram of the two rivers.”25 A Greek translator of the Bible working in Alexandria later translated this term as Mes opotamia (from the Greek, meaning “[land] between the rivers”) and this name came to be universally used to describe the area between the Tigris and Euphrates Rivers, beginning at their joint mouth at the head of the Persian Gulf and extending northwest to cover most of what is today Iraq, eastern Syria, and southeastern Turkey.26 The primary geographic and climatological characteristic of the area is a “vast alluvial plain” (described in Arabic as the “sawād” or “black land”) created by sediment deposited by the two rivers as they flow south from the Taurus and Anti-Taurus Mountains in Turkey (Ana tolia) to the Persian Gulf.27 From time immemorial this alluvial plain has

25 A. Kirk Grayson, “Mesopotamia,” in Anchor Bible Dictionary, 4:714. It is likely that the Bible was referring to an area on the Upper Euphrates River in northeastern Syria. 26 Martin A. Beek, Atlas of Mesopotamia, trans. D.R. Welsh, ed. H.H. Rowley (London and Edinburgh: Thomas Nelson and Sons, 1962), 17; Grayson, “Mesopotamia.” 27 Hans J. Nissen and Peter Heine, From Mesopotamia to Iraq: A Concise History, trans. Hans. J. Nissen (Chicago and London: University of Chicago Press, 2009), 1–4; H.H. Schaeder, s.v. “sawād” in Encyclopaedia of Islam, New Edition, eds. C.E. Bosworth, E. van Donzel, W.P. Heinrichs, and G. Lecomte 9:87, available online at: .

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 31 attracted immigrants from around the region. Early in human history agricultural, metalworking, and quarrying enterprises flourished in the river valleys.28 As is well known, the earliest extant written records of human activity in world history are the records of the Sumer civilization in the southern reaches of ancient Mesopotamia. This civilization gave us the first system of writing and with that system came the first known written law codes. Although the civilization is much older than the records that have been found, those records, dating back by some estimates to approximately 2900 BCE, show that slavery and slave trading began to occur with regular frequency in Mesopotamia as urban settlements and large-scale agricultural projects came to govern social and economic life.29 Prisoners of war, subjugated townspeople, indigents, children sold by their parents, kidnapped children and young adults, people unable to pay their debts, and foreigners imported from other lands made up much of the Mesopotamian slave population.30 The foreigners came from at least as far away as Egypt and the Red Sea region, from other areas in the Med- iterranean basin, and from the east, often as distant as the Iranian plateau.31 It appears that later Sumerian society eventually developed urban slave markets and an active and sophisticated long-distance slave trade.32 It is more than a coincidence that the region yielding the first evidence of agricultural settlement in human history is also the region that gives us the first evidence of slavery.33 Amelie Kuhrt dates the appearance of large numbers of slaves to the Third Dynasty of Ur (2112–2004 BCE) in what is today Iraq.34 The numbers were not great by later Greco-Roman standards but they were significant; one Ur household was reported to include 220 slaves but this was said to be an unusu- ally high number.35 Typically, Mesopotamian households would not have more

28 Nissen and Heine, From Mesopotamia to Iraq, 3–4. 29 Thomas M. Ricks, “Mesopotamia,” in “Ancient Middle East,” in Finkelman and Miller, Macmillan Encyclopedia of World Slavery, 1:66; Daniel C. Snell, “Slavery in the Ancient Near East” in Bradley and Cartledge, The Cambridge World History, 1:10. cf. Isaac Men- delsohn, Slavery in the Ancient Near East: A Comparative Study of Slavery in Babylonia, Assyria, Syria, and Palestine from the Middle of the Third Millennium to the End of the First Millennium (New York: Oxford University Press, 1949), 92–120. For rough approximations of the first instances of writing, in Uruk, see Amelie Kuhrt, The Ancient Near East c. 3000– 330 BC (New York: Routledge, 1995), 1:12. As she points out, there is much scholarly dis- agreement on this issue. 30 Mendelsohn, Slavery in Ancient Near East, 1–33; Ricks, “Mesopotamia,” 66. 31 Ricks, “Mesopotamia,” 66. 32 Ibid. 33 Jacoby, “Slaves by Nature?,” 94. 34 Kuhrt, Ancient Near East, 1:40; See also Bernard J. Siegel, Slavery During the Third Dynasty of Ur (Menasha, WI: American Anthropological Association, 1947). 35 Daniel C. Snell, Life in the Ancient Near East: 3100–332 BCE (New Haven; London: Yale Uni- versity Press, 1997), 36.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 32 Chapter 1 than 3 or 4 slaves and many households did not employ any slaves at all. Men- delsohn estimated that a wealthy Sumerian household typically owned no more than one or two slaves although a few households might own as many as 26 slaves. Numbers tended to be larger in the countryside.36 Wealthy fathers would sometimes give 3, 4, or 5 slaves to their daughters as part of their dowry.37 Even given the small population of enslaved persons, slavery remained an important aspect of Mesopotamian civilization for the next 2000 years. Several important civilizations emerged during and after the zenith of the Sumer Em- pire. These included Akkad (2350–1350 BCE), Babylonia (1350–539 BCE), the Kassite or Hittite civilization (1600–717 BCE), Assyria (1250–520 BCE) and a Neo-Babylonian empire (mid 600’s–520 BCE). All of these societies were “societies with slaves,” to use Finley’s phrase, and in some instances slaves played an outsized role in political, economic, and social life. Slaves in the early Akkadi- an period were primarily used to cultivate agricultural lands and perform household duties.38 As the Mesopotamian societies became more complex, the functions of their slave populations also expanded and became more varied. The Babylonian era includes the promulgation of the famous “decisions of justice” by King Hammurabi of Babylon (r. 1792–1749 BCE), now commonly described as the Hammurabic code. The code dealt quite extensively with the regulation of slave behavior and relations between free persons and slaves. For example, it regulated the enslavement of children who had been abandoned by their parents because of war or pestilence or famine and it permitted a husband to sell his dishonest or spendthrift wife into slavery. Slavery could be imposed as a remedy for crime or civil wrong. If a man caused damage by flood to his neighbor’s field and was unable to fully compensate his neighbor, he could be sold into slavery.39 The code was quite harsh in the matter of fugitive slaves. Stealing and the concealed possession of stolen goods were capital crimes. Consistent with this rule, the code decreed the death penalty for assisting a slave to escape or for harboring or refusing to turn over a fugitive slave.40 Con- comitantly, a reward was due to anyone who facilitated the return of a fugitive slave to his or her rightful owner. On the other hand, the code was quite liberal

36 Mendelsohn, Slavery in Ancient Near East, 119. 37 Ibid. 38 Ibid., 37. Dates are taken from Ricks, "Mesopotamia," 65–67. 39 These examples are given by Dandamaev in Dandamaev, “Slavery: Ancient Near East,” in Anchor Bible Dictionary, 6:59; See also Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (Atlanta: Scholars Press, 1995), 71–142. 40 Mendelsohn, Slavery in Ancient Near East, 58–59 (citing paragraphs 15–20 of the Ham- murabic Code); Roth, Law Collections, 84–85.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 33 in matters involving debt slavery and in rules governing manumissions. Wives and children sold into slavery or pledged to satisfy a debt could only be held for three years.41 A slave-concubine and her children were set free on the death of her owner and the children of a union between a free woman and a slave, apparently a common practice, were free at birth.42 Although “Hammurabi’s vision” was likely quite far removed from actual practice, it is significant because it expressed ideas about justice and fairness and the relationship of slavery to those ideas.43 It signified an early jurisprudential recognition that such ideas were central to the successful legal administration of the relationship between slaves and owners and, concomitantly, successful management of relationships between the landed classes and lesser-status persons, including laborers, artisans, and craftsmen. One of the more enduring aspects of the Hammurabic legislation is the rule declaring that children of marriages between slaves and free persons were also free.44 Aspects of this rule were adopted by Islamic jurists some two thousand years later, in sharp contrast to the rules on the children of such marriages found in the Greek, Roman, and Hebrew systems. Societies in the ancient Middle East “consisted of three large social groups: citizens of cities with full rights; various groups of freemen deprived of civil rights; and, finally, a semi-free population and slaves.”45 Slaves in this period were also generally of three types: (1) those who lived and worked in private households; (2) temple slaves, or those assigned to duties in temples and in service to Gods; and (3) royal slaves, also known as “slaves of the Palace,” who were owned by the king and performed a variety of official and semi-official functions.46 The privately owned slaves were “equivalent to livestock” and a form of movable property that could be sold, transferred by inheritance, given away, loaned, etc.47 Slaves performed all manner of household and agricultural duties and also functioned as skilled craftsmen.48 The sources for such slaves shifted as the kingdoms evolved. In the older Babylonian kingdoms the enslaved were persons captured in war or kidnapped and transported as part of

41 Ibid., 74 (citing paragraph 117 of the Hammurabic Code); Roth, Law Collections, 103. 42 Ibid., 75 (citing paragraphs 171 and 175 of the Code); Roth, Law Collections, 114–115. The free wife must have been a member of the highest privileged class, although the phrase used in the rule might be used to describe any free person. Roth, Law Collections, 268. 43 Daniel C. Snell, “Slavery in the Ancient Near East,” in Bradley and Cartledge, The Cam- bridge World History, 1:10. 44 Ibid. See also Mendelsohn, Slavery in Ancient Near East, 75; Roth, Law Collections, 113–114 (paragraphs 170 and 171 of the Hammurabic Code). 45 Dandamaev and Lukonin, Ancient Iran, 152. 46 Dandamaev, Slavery in Babylonia, passim. 47 Dandamaev and Lukonin, Ancient Iran, 153. 48 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 34 Chapter 1 the slave trade but in the newer Babylonian kingdoms it appears that slaves were permitted to live in families and their “natural reproduction” was a major source for the replenishment of slaves.49 Prisoners of war remained a significant source but they often found themselves working in temples or as part of the royal household. Orlando Patterson has forcefully argued that the case for the automatic enslavement of prisoners of war in ancient Mesopotamia has been grossly overstated but he does acknowledge, following Dandamaev’s lead, that this source of enslavement became more and more important in the later Mesopotamian kingdoms.50 We do know that members of the Babylo- nian nobility owned large numbers of slaves, including those captured in war, and capturers were permitted to sell their slaves in the market. It is only natural that the nobility commanded great economic influence in such circumstances.51 Some slaves in Babylonia became very wealthy, most often because of ownership by influential and well-connected masters.52 Such slaves could still be sold and the sale would bring the owner a significant sum, especially if the slave was talented or highly skilled.53 Temple slavery was another important feature in the Babylonian system. Isaac Mendelsohn observed:

At the dawn of history the Babylonian temple, with the vast wealth at its disposal, already constituted the richest agricultural, industrial, commercial, and financial single unit within the community. It was a well-organized and efficiently run corporation controlling in its hand extensive tracts of land, enormous quantities of raw material, large flocks of cattle and sheep, sizable amounts of precious metal, and a large number of slaves. In short: the Babylonian temple, in the Sumerian as well as in the later Semitic period, was the largest landowner, the greatest industrialist, the richest banker, the biggest slaveholder in every city of the country.54

Moses Finley warned against the tendency of historians of the ancient Middle East to classify populations in accordance with an “Engelsian unilinear scheme” which, using ownership of the means of production as its pole, viewed ancient societies as simply consisting of three classes: free, semi-free (serfs and helots)

49 Dandamaev, Slavery in Babylonia, 107. 50 Patterson, Slavery and Social Death, 107–110. 51 Dandamaev, Slavery in Babylonia, 107–111. 52 Daniel C. Snell, “Assyria and Babylonia” in “Ancient Middle East,” in Finkelman and Miller, Macmillan Encyclopedia, Vol. 1, 63. 53 Ibid. 54 Mendelsohn, Slavery in Ancient Near East, 100.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 35 and unfree (slaves).55 He argued that it is not axiomatic that slavery was just about relationships of production.56 The existence and role of temple slavery in Mesopotamian and Babylonian societies, and the important role that elite slaves played in later societies, proves his assertion to be correct. He maintains, and there is no doubt, that the concept of ownership determined the temple slave’s relationship to the priests and to the religious establishments (including the Gods), but fundamentally it was a more elaborate and highly stratified form of ownership that predominated. Temple slaves might own large numbers of slaves themselves. Thus, they were very influential and could exert great pressure on markets and the population’s relationship with the religious elite. Their role was certainly not just about economic production or the perceived social status of the owner. They developed their own socio-religious status and personalities, influencing political and religious events in myriad ways. We will see this distinctive phenomenon again when we consider the role of elite slavery in Islam. The Babylonian system had other aspects that we tend to see in the systems that followed it in history. Slaves were physically marked, either with a tattoo, a distinctive haircut, a metal band, or some other form of branding. This, together with distinctive naming, helped to distinguish the enslaved from the free and to identify runaways.57 Although slaves had some protections against intentional injury or homicide, the punishment for injuring or killing another person’s slave was generally only half that imposed for injuring or killing a free person or imposition of a fine rather than capital punishment.58 A free person could be enslaved for failure to pay a debt and a person might sell himself or his children into slavery because of hunger or other personal calamity. This phenomenon has been described as “enslavement by predicament.” Enslave- ment could also be the result of punishment for crime or for family offenses that dishonored a parent or older brother.59 The Sumerian city-state of Uruk employed temple slaves to assist priests and palace work forces included large numbers of domestic servants, including many females.60 This is probably the first instance in history where we see slaves being used to perform religious functions and to provide assistance to state institutions.

55 Finley, Ancient Slavery and Modern Ideology, 138. 56 Ibid., 139. 57 Snell, Life in the Ancient Near East, 54–55. 58 James Lindgren, “Measuring the Value of Slaves and Free Persons in Ancient Law,” Chica- go-Kent Law Review 71 (1995): 149; James Lindgren, “Why the Ancients May Not Have Needed a System of Criminal Law,” Boston University Law Review 76 (Feb./April 1996): 29, 43–45. 59 William E. Dunstan, The Ancient Near East (Fort Worth: Harcourt Brace, 1998), 85. 60 Ricks, “Mesopotamia” in MacMillan Encyclopedia, 65.

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Slavery became an established institution fairly early in the Sumerian dynastic period and many of the Sumerian slaves were natives. Natives were typically enslaved as punishment for crime or to satisfy a debt or because of their inability to feed their families.61 The later Mesopotamian empires of Akkad, Assyria, and Babylon employed schemes of forced labor, military slavery, employment of prisoners of war, and trade in foreign slaves, all helping to further the imperial ends of the regimes and the economic prosperity of those socie ties.62 Dandamaev and Lukonin note that, during the Achaemenid Babylonian period, private business houses, including the House of Egibi, a prominent business and trading house, owned dozens and even hundreds of slaves, and traded in them as they did in other commodities.63 As I have noted, in some cases slaves who were owned by well-connected citizens became fabulously wealthy themselves and it would not be unusual for a wealthy slave to also own a large number of slaves in his own right.64 Native free citizens in these later empires were also often forced into debt bondage, whether through self-sale or as the result of sale by someone in loco parentis, such as a husband, father, or guardian. The Hammurabic Code, at paragraph 117, recognized that a head of household might sell his wife or son or daughter into bondage to pay a debt and, as I have noted, it sought to establish temporal limits to this form of bondage (three years), although some have argued that there is no evidence that this limitation was honored during the reign of Hammurabi or “at any other time in Mesopotamian history.”65 In the old Babylonian kingdom, large numbers of slaves were imported from outside the realm.66 Although households, temples, and state institutions in the newer kingdoms increasingly employed enslaved natives, each kingdom also continued to enslave foreigners who, either by trading or through mechanisms of war, came into close and extensive contact with Mesopotamian societies.

61 Dunstan, Ancient Near East, 71. 62 Ibid., 66–67. 63 Dandamaev and Lukonin, Ancient Iran, 215. 64 Daniel C. Snell, “Assyria and Babylonia,” in “Ancient Middle East,” in Finkelman and Mill- er, MacMillan Encyclopedia, 63. 65 Samuel Greengus, “Legal and Social Institutions of Ancient Mesopotamia,” in Jack M. Sas- son, John Baines, Gary Beckman, and Karen S. Robinson, eds., Civilizations of the Ancient Near East (New York: Scribner, 1995), 1: 477–478. 66 Saggs, The Babylonians, 56.

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4.2 Mesopotamia and the Indus Valley While the archaeological and documentary evidence is not as firm as some would like, it appears that, over the entire 2500-year period that marked the existence of the ancient Mesopotamian civilizations, significant trading relationships existed between these civilizations and the communities on the In- dian sub-continent to the east.67 Although Professor Algaze humorously admitted that there was never any “Uruk East India Company,” the evidence of a relationship between the peoples of Mesopotamia and the peoples of the Indus Valley is growing. It includes recent discoveries of DNA genetic links as well as the discovery of Lapis Lazuli, and other uniquely Indian jewelry, in the royal tombs of Ur. It also includes the discovery of Harappan seals in Mesopo- tamian documents and the use of Mesopotamian cosmetics in Harappa (referred to by the Mesopotamians as Meluhha), as well as Meluhha ships docked at Akkad.68 These relationships, forged by maritime trading in the Persian Gulf, across the Indian Ocean, and overland trading along the Silk Road, would have tended to meld and blend conceptions of slavery throughout the Eur- asian world as it was then known. Thus it is not surprising to see that there were some similarities between the Mesopotamian slavery systems and the Hindu system of slavery. These similarities, even granting that the evidence is

67 Kuhrt, The Ancient Near East 1, 4, 332; C.C. Lamberg-Karlovsky, “Trade Mechanisms in In- dus-Mesopotamian Interrelations,” Journal of the American Oriental Society 92 (1972): 222–9; C.C. Lamberg-Karlovsky, “Sumer, Elam, and the Indus: Three Urban Processes Equal One Structure?” in G.L. Possehl, ed., Harrapan Civilization: A Contemporary Perspec- tive (New Delhi: Oxford and IBH Publishing, 1982), 61–68; A. Parpola, S. Parpola, and R. Brunswig, “The Meluhha Village: Evidence of Acculturation of Harrapan Traders in Late Third Millennium Mesopotamia?” Journal of the Economic and Social History of the Orient 20 (1977): 129–165; Ernest Mackay, “Sumerian Connexions with Ancient India,” Journal of the Royal Asiatic Society 57: 4 (October 1925): 697–701; Guillermo Algaze, The Uruk World System: The Dynamics of Expansion of Early Mesopotamian Civilization (Chicago and Lon- don: University of Chicago Press, 1993), 126; Christopher Edens, “Dynamics of Trade in the Ancient Mesopotamian ‘World System’ ” American Anthropologist, New Ser. 94:1 (March 1992): 118–139. See the excellent general review of the scholarship on the Mesopotamian- Indus Valley relationship in Philippe Beaujard, “The Indian Ocean in Eurasian and Afri- can World-Systems before the Sixteenth Century,” Journal of World History 16:4 (December 2005): 411–465. 68 Algaze, The Uruk World System, 127; Nissen and Heine, From Mesopotamia to Iraq, 57; H.W. Witas, J. Tomczyk, K. Jędrychowska-Dańska, G. Chaubey, and T. Ploszaj, (2013) “mtDNA from the Early Bronze Age to the Roman Period Suggests a Genetic Link between the In- dian Subcontinent and Mesopotamian Cradle of Civilization,” PLos ONE 8(9): e73682. Doi:10.1371/journal.pone.00073682; R.S. Sharma, India’s Ancient Past (New Delhi: Oxford University Press, 2005); 80; Marc Van De Mieroop, A History of the Ancient Near East (Mal- den, MA: Blackwell, 2004), 63.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 38 Chapter 1 thin, are useful in understanding the ethos forming the background to the legal culture of slavery at the time of the advent of Islam. The Indus Valley civilization also contained primarily three social classes— rulers, merchants, and artisans—and a fourth group, described in the literature as “servants” (likely slaves and wage laborers). The existence of this fourth class is deduced from the presence of living quarters, resembling barracks, near granaries and other places where group work would have been performed.69 Unfortunately, this conclusion can be only tentatively advanced, as there is no documentation to support it.70 Documents from a later civilization, described as the Rigveda, are more definitive. A group of people, perhaps from northwest India, were subdued by the Aryans and were reduced to slavery, according to the documents. Those subjugated groups are called dasas or dasy- us—described as “noseless,” “flat-lipped,” “phallus-worshippers,” and of “hostile speech.”71 The word “dasa” consequently began to denote a slave in the San- skritic languages and such usage continues to this day. Thus, a “dasi” is a woman slave of the victor in a war.72 The Aryans also knew debt slavery, slavery to satisfy gambling debts, and enslavement of prisoners of war.73 The references to the “dasa” and “dasi” found their way into Vedic hymns. In one, a dasi is given to entertain a bride in her new home.74 Later Vedic literature reports the story of a king who gave 10,000 dasis as a gift to his priest.75 In others, descriptions of opulence include lists of “cattle, horses, elephants, gold, female slaves, fields, horses …” as evidence of wealth.76 Indeed a dasa or dasi, through wealth, might even become an Aryan.77 This practice is similar to the Mesopotamian circumstances that also permitted some slaves to amass considerable wealth. In fact, the argument is made that there was a remarkable affinity between the Indus Valley civilization (an aspect of which is often described as Mohenjo-Daro)

69 Dev Raj Chanana, Slavery in Ancient India as Depicted in Pali and Sanskrit Texts (New Delhi: People’s Publishing House, 1960), 17–18. 70 Ibid. The conclusion that a fourth class of persons existed, forming a “distinct social group,” is widely held. See, e.g., Narayanchandra Banerjee, “Slavery in Ancient India,” Cal- cutta Review 36 (1930): 249. 71 Chanana, Slavery in Ancient India, 19. 72 Uma Chakravati, “Of Dasas and Karmakaras: Servile Labour in Ancient India,” in Chains of Servitude: Bondage and Slavery in India, Utsa Patnaik and Manjari Dingwaney, eds., (Lon- don and Madras: Sangam Books, 1985), 35–75; Chanana, Slavery in Ancient India, 19–20. 73 Chanana, Slavery in Ancient India, 19. 74 Ibid., 21. 75 Ibid. 76 Ibid. 77 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 39 and the Mesopotamian and Egyptian civilizations to the west. Chanana quotes the scholar R.M. Wheeler:

Based economically on the produce of the traffic of the great river-plains, the kingdoms or city-state … s of these regions (Egypt and the Middle East) had an essential affinity with the contemporary cities of the Indus system. It would be but natural to find that this similarity of supply and opportunity, combined with a roughly analogous equipment, produced, in India, a social organization not altogether unlike those of the contemporary West.78

The institution of slavery in the Indus Valley was also greatly influenced by the rise and the expansion of the Buddhist oligarchies, which became further en- trenched with the emergence of the Buddhist monarchies and then the Bud- dhist empires, a period extending from about the fifth century BCE until about 261 BCE. Chanana argues that slavery flourished during the Buddhist epoch and then found legal and juridical support when the Hindu polities reasserted themselves between the second century BCE and the fourth century CE.79 Dur- ing the times of the oligarchies and monarchies, slaves were employed as soldiers, in the royal stables, and extensively in agricultural work.80 Although the monarchical armies were almost exclusively composed of nobles, slaves performed a great variety of functions during the monarchical period.81 This was the period when the Indian custom of establishing “villages of slaves,” and other settlements of slaves set aside just for the convenience of landowners and nobility, apparently took hold.82 There are still strong vestiges of this custom today, especially in rural India and in the Persian Gulf. An early twentieth-century Indian scholar wrote:

The founders of Jainism and Buddhism did much to propagate the doc- trine of ahiṁsā and to improve the social weal, but so deep-rooted was the institution of slavery that hardly any attempt was made in the Bud- dhist period to better their condition. The Buddhists, according to the practice of the age, did not consider them as human beings and slaves were debarred from entering the Buddhist Saṅgha. Other religious re-

78 Ibid., 17. See R.M. Wheeler, The Indus Civilization (Cambridge, UK: Cambridge University Press, 1953). 79 Ibid., 39–55, 113; See also Banerjee, “Slavery in Ancient India,” 252–254. 80 Ibid., 41. 81 Ibid., 40–52. 82 Ibid., 42.

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formers were silent on this point. Probably, they were favourably inclined toward slaves since they seem to have conceded to them the right of entering the Saṅgha. According to the practice of that age, those who could enter into a religious Saṅgha were freed from the bonds of slavery.83

The period also saw the recording of much information on the status of enslaved women, especially those in rich and well-to-do households. Such facts were noted in a number of documents, including, most prominently, the Tipi- taka, an epic description of everyday life during that time.84 The nataka-itthi, or “dancing girls,” were quite common in wealthy households, with some princes being described as owning tens of thousands of nataka-itthi.85 They were often transferred from father to son and performed many functions, including being sexually available to their owner.86 Buddhist jākatas (narrative accounts of social life during the time that the Buddha lived) contain a number of accounts of wealthy men taking concubines and of free women falling in love and sometimes marrying slaves in their households.87 Slaves often formed part of the retinue of the wealthy, working as valets, doorkeepers, gar- deners, kitchen help, and as wet nurses.88 Perhaps the most interesting aspect of slavery during the Buddhist epoch, and the period of Hindu dominance that followed it, is the development of an ideology of slavery. This was a phenomenon that was quite similar to the development of an ideology of slavery among the Greeks and the Romans. The difference was that the ideological norms of Buddhist and Hindu slavery seemed to revolve around the cultural and social attitudes toward manual work that characterized those societies. Manual labor was looked down upon, especially among the Brahmin and other high-status castes, and this resulted in a cultural attitude relegating slaves to a despised status.89 The Buddha took an interest in this problem. He mediated disputes between slaves and their masters and he issued orders that no former slave who entered the Buddhist orders should be referred to by the former slave name.90 Similarly, he banned the use of names of contempt that were associated with slavery.91 He recommended

83 Banerjee, “Slavery in Ancient India,” 252. 84 Chanana, Slavery in Ancient India, 11. 85 Ibid., 45. 86 Ibid. 87 Bannerjee, “Slavery in Ancient India,” 254. 88 Chanana, Slavery in Ancient India, 45–52. 89 Ibid., 59–60. 90 Ibid., 60. 91 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 41 kind treatment of slaves and servants and there is an argument that he suggested that Buddhists accord a place of pious respect in their social life for those of the lower stations in life, which included slaves.92 A similar employment of piety in religious thinking about slavery is seen in the pronounce- ments of the Prophet Muhammad on slavery some years later. On the other hand, like arguments found in Christian texts, the Buddha counseled complete submission of slaves to their masters, promising that slaves would be rewarded for their service in their next life.93 Research remains to be done on the Bud- dha’s attitude toward a slave revolt that occurred during his time, but the Tipi- taka seems to suggest that his attitude was an overarching one of fostering peace, which would counsel that disobedience by a slave or servant “was considered as an evil act” and the same view was held to apply to bad treatment of the slave by the master.94 There was no thought given to abolition. The Hindu Smritis, sources of Hindu law, especially the Code of Manu and the Narada, emerging between the second century BCE and the fourth century CE, contain numerous references to slavery. The Narada shows that later Hin- duism recognized 15 classifications of slaves, although most of these were also recognized in the Tipitaka.95 These classifications included, by way of example, slaves “born in the house,” slaves “obtained from war,” a purchased slave, an inherited slave, a slave “freed from a big debt,” a mortgaged slave, a concubine (the name being translated as “I am yours”), a slave “returned from asceticism,” a slave maintained in time of famine, and a person enslaved because they are living with a woman slave.96 It has been argued that, in the later time of the Arthaśāstra, the rules governing slavery and slave trading were liberalized, pro- hibiting rape of an enslaved woman, torture of workers, and permitting slave- initiated contracts of manumission, only to be tightened again in the time of the Manusaṁhita, when the Indians began to make contact with cultures and armies coming from the west.97 Further research is required to discover relationships between the Hindu approach to slavery and systems seen in Babylo- nia and in the Achaemenid Empire, where the law codes recognized many of these same categories.

92 Ibid., 61. 93 Ibid., 62. 94 Ibid., 63. 95 D.R. Banaji, Slavery in British India, 209; Chanana, Slavery in Ancient India, 114–115; Baner- jee, “Slavery in Ancient India,” 261. 96 Chanana, Slavery in Ancient India, 114–115; Banerjee, “Slavery in Ancient India,” 261. 97 Banerjee, “Slavery in Ancient India,” 259–264.

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4.3 Ancient Egypt, Neo-Babylonia and Ancient Iran Socioecological circumstances that contributed to the rise of empires in Meso- potamia, with their cosmopolitan urban centers and dependence on agricultural production and trade, also occurred in ancient Egypt. There were a number of “fundamental attributes” that distinguished the early Mesopota- mian and Egyptian civilizations from the cultures that came before them. Both civilizations were characterized by increased agricultural efficiency, sophisticated techniques for harvesting crops, predictable weather, large food surplus- es, high population densities, centralized states controlling large areas of territory, economies sustained by centralized taxation and tribute, distinctions among social classes that included slaves, and long-distance trading relationships that involved travel over the ocean.98 In spite of the commonalities I have mentioned, there were also some significant differences. Aspects of ancient Egyptian religion, with its consuming focus on an elaborate vision of the after- life, are not comparable to any other ancient religious milieu. Also, the ancient Egyptians engaged in building projects that dwarf those engaged in by any other civilization existing during that time, with the possible exception of imperial China. Concerning our inquiry, it is much more difficult to get a historical fix on the nature of slavery and slave trading in ancient Egypt as compared to ancient Mesopotamia, where much more is known. Kuhrt, like many scholars of the ancient Near East, says nothing about slavery in ancient Egypt. Dunstan asserts that ancient Egyptian domestic slavery was actually quite rare and largely con- fined to forced labor performed by foreign war captives.99 There is very little in the scholarly literature that would either support or dispute this assertion, even though the topic commands much attention in the popular literature on ancient Egypt. Much of what we know comes from tomb art, temple inscriptions, and from descriptions of Egyptian practices in the Hebrew Bible. Per- haps the most important of these biblical descriptions is the story of Joseph, who was sold into slavery by his brothers and later rose to a position of promi- nence in the government of the Pharaoh.100 We also have the graphic descriptions of Moses’ birth in Egypt, the enslavement of the Hebrews, and Moses’ leadership in guiding the ancient Israelites out of Egyptian bondage. These events form the basis for the yearly Passover rituals, rites that are extremely important in the Jewish religion.101

98 Dunstan, Ancient Near East, 41–42. 99 Ibid., 124. 100 Gen. 37: 1–47. 101 Exod. 12–13.

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The Hebrews were not the only group to be subjected to slavery in ancient Egypt. Inscriptions and monumental artwork on the Luxor Temple and other important Middle and New Kingdom monuments clearly depict non-Egyptian men, usually Nubians and “Asiatics,” as prisoners of war. Ancient Egyptian tomb art is, without doubt, the most important source of information on daily life in ancient Egypt, although many of the scenes are idealized depictions of that life.102 Mural paintings on the walls of Hatshepsut’s mortuary temple in Luxor famously depict her expedition to “Punt” on the East African coast. The expedition may have involved the capture or purchase of East Africans and their involuntary transportation back to the Egyptian kingdom. Unfortunately, these inscriptions, and even the Biblical accounts, tell us very little about the character of the Egyptian law and practice on slavery. John A. Wilson describes Egypt as “a hermetically sealed tube containing a concentration of life close to the saturation point.”103 In another trenchant observation, he remarked that “[t]he way of the Semite, who held a contact with the desert, was to cling fiercely to tradition and to resist innovations, which changed the purity and simplicity of life. The way of the Egyptian was to accept innovations and to incorporate them into his thought, without discarding the old and outmoded.”104 Ancient Egyptian history is generally divided into three dynastic periods— the Old Kingdom (2574 BCE–2134 BCE), the Middle Kingdom (2040 BCE–1640 BCE), and the New Kingdom (1550 BCE–1070 BCE)—each also framing several very important intermediate periods.105 Within 300 years following the end of the reign of Ramses IX, the last pharaoh of the New Kingdom, Egypt came under the sovereignty of neo-Babylonian and Persian imperial entities, based in Mesopotamia, and these two entities dominated politics, economics, military affairs, and social life in Egypt until the Macedonians, led by Alexander the Great, entered the region in 332 BCE. Indeed, the Persians colonized Egypt and extracted tribute from the Egyptian state from 525 BCE (with interruptions) until Alexander conquered it in 332 BCE. After Alexander died in Babylonia, one of his generals in Egypt took over the province, calling himself a “Ptolemy” and he and his successors ruled Egypt for a long period, now described as the

102 James K. Hoffmeier, “Everyday Life in Ancient Egypt,” in Richard E. Averbeck, Mark W. Chavalas, and David B. Weisberg, eds., Life and Culture in the Ancient Near East (Bethesda, MD: CDL Press, 2003), 327–351, 328. 103 John A. Wilson, “Egypt,” in H. and H.A. Frankfort, John A. Wilson, and Thorkild Jacobsen, Before Philosophy: The Intellectual Adventure of Ancient Man (Baltimore: Penguin Books, 1949), 40. 104 Ibid., 41. 105 John Baines and Jaromír Málek, Atlas of Ancient Egypt (New York: Facts on File, 1980), 36–37.

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Ptolemaic period, which lasted until the Romans declared Egypt to be a province of Rome in 30 BCE. Slavery and slave trading were undoubtedly important features of society and imperial endeavors during this entire three-thousand- year period, in some cases of great importance and, in other cases, of lesser importance, but never completely absent. There is a great need for more research on slavery and slave trading and their relationship to law in ancient and Ptolemaic Egyptian history. In the next chapter I will show that, during the Is- lamic era, a unique ethos on slavery developed in Egypt. The emergence and success of the Egyptian Mamluk dynasties are a prime example of that ethos. There is some warrant for concluding that this ethos owed part of its origin to the legacy of slavery contributed by ancient and Ptolemaic Egyptian society and culture. One treatment of slavery in pharaonic Egypt, a 1946 Oxford University doc- toral thesis by an Egyptian scholar named Abd el-Mohsen Bakir, does shed some light on the nature of slavery and slave trading, and the law governing such phenomenon, in the several ancient Egyptian eras, especially the New Kingdom (1550 BCE–1070 BCE). He provides some discussion of the Ptolemaic period as well. The thesis undertook a rather sophisticated analysis of Egyptian hieroglyphic texts from all periods, as well as hieratic and demotic documents, Aramaic papyri of the Persian period (525–404 BCE and 343–332 BCE), and Greek papyri from the Ptolemaic period after the death of Alexander the Great (305–30 BCE). It also incorporated material from a variety of secondary sources. Bakir concludes that ancient Egyptian law treated the slave as a res, like cattle and land, and the law also enforced systems of compulsory labor that lasted into the Ptolemaic period.106 He asserts that there was also a widespread de facto system of bondage to the land (predial slavery) but he concludes it is difficult to determine whether this system involved enslavement or an ancient form of serfdom or even wage labor.107 If it was serfdom, it appeared to be similar to villeinage in English law and the colonate of late Roman law.108 There is no doubt, however, that some persons in Egypt, especially in the New Kingdom, were held in slavery, as they are described in the ancient texts as the property of others and they were liable to be gifted, sold, traded, leased, or inherited.109 There is a wealth of documents confirming the existence of such relationships, as well as documents acknowledging multilateral and uni-

106 Abd El-Mohsen Bakir, Slavery in Pharaonic Egypt (Cairo: Imprimerie L’institut français d’archéologie Orientale, 1952), 4. 107 Ibid., 4, 6–8. 108 Ibid., 7. 109 Ibid., 11–14.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 45 lateral acts of self-sale into slavery.110 Bakir describes the evidence in the Old and Middle Kingdoms as “vague and scanty” but there is considerably more evidence in documents from the New Kingdom and the Ptolemaic period.111 There is a clear indication of organized slave trading during these periods and the nationality of slaves seems to have become more important. There are a number of references to Syrian slaves and, like provisions found in the Code of Hammurabi, there were restrictions on selling slaves of certain nationalities or house-born slaves outside the country.112 Bakir argues that the Egyptian law on slavery evolved as the Pharaonic entities came increasingly into contact with other societies that practiced slavery and slave trading. This might explain why the documents from the New Kingdom show a more extensive and elaborate system of slavery.113 The answer to this puzzle might actually be simpler, e.g., that the older documents were destroyed or have been more difficult archaeo- logically to uncover, but it is also clear that the other societies that the New Kingdom Egyptians came into contact with, sometimes on a war footing, permitted slavery and engaged in slave trading. There was likely a melding of practice, and perhaps law, as a result of these contacts, as was true in Eurasia in its relationship to the Indus Valley. Russ Versteeg’s recent review of the literature confirms that there was an influx of foreign slaves, drawn from populations of prisoners of war, in the New Kingdom.114 It appears that the Pharaoh Thut- mose III (1479–1425 BCE) employed slaves to work on his estates and on building projects.115 Slaves, probably foreigners, were bought and sold as chattel and archaeologists have discovered New Kingdom documents, found in an excava- tion at El-Lahun, showing that a noble bequeathed four “Asiatic” slaves to his wife in a will.116 The literature generally supports Bakir’s conclusion that contacts with other societies in war and political relations tended to expand the use of slaves in New Kingdom Egypt. Two of the most important of these contacts were with the Babylonians, described in the literature as the “neo-Babylo- nians” (describing the later Babylonian imperial endeavors) and the Persians. Slavery and slave trading were important aspects of life in both these socie ties. Babylon during this period struggled with the Assyrians, and many of the neo-Babylonian kings were in reality Assyrian governors and nobles occupying

110 Ibid., 53–57. 111 Ibid., 64, 69–95. 112 Ibid., 72. 113 Ibid., 7. 114 Russ Versteeg, Law in Ancient Egypt (Durham: Carolina Academic Press, 2002), 214–216. 115 Ibid., 215. 116 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 46 Chapter 1 the Babylonian throne.117 Nabopolassar was the most important of these kings and his siege of the city of Nippur forced the Babylonians in that city to sell their children into slavery.118 Eventually the Babylonians retook the city and, in 612 BCE, the Assyrian capital of Nineveh (near modern-day Mosul in Iraq) fell. This was followed by the rise of the neo-Babylonian kingdom, led by Nebu- chadnezzar. Accounts of widespread slavery during the neo-Babylonian period are legion.119 The Egyptians also made war on the neo-Babylonians, and at one point their military expeditions reached the Euphrates River, but they were ultimately pushed back and Nebuchadnezzar eventually controlled all of Uruk, Syria, and Palestine to the Egyptian border, including Jerusalem. Slavery in Nebuchadnezzar’s kingdom was the norm. The neo-Babylonians dominated the region until Cyrus, the great Persian emperor and reformer, defeated the neo-Babylonian army at the city of Opis, near what is today modern Baghdad, on the Tigris River, in August, 539 BCE.120 Cyrus enacted a policy of non-interference with neo-Babylonian social and legal institutions. Babylonia became a satrapy of the Persian Empire but maintained much its own economic and cultural character. The next important Persian emperor, Darius I, sought to improve on these policies even though he found it necessary to put down a series of revolts. Under Darius I and his successor Xerxes, there were extensive political changes and eventually the neo- Babylonian kingdom disappeared and became part of the Achaemenid Empire. The later Achaemenid kingdom was characterized by “continual revolts of individual satrapies, palace revolutions, and the steady weakening of central authority.”121 Although we do not hear of slave revolts, slavery and the conduct of slave trading were prevalent practices in Achaemenid Babylonia and es- capes of slaves were common. “Fugitive slaves were caught, branded like livestock, incarcerated in fetters and returned back to work.”122 Persian nobles came to be major slave owners in Babylonia and other subjugated realms.123 Dandamaev and Lukonin argue that during this time slavery began to go into decline but examinations of neo-Babylonian documents and papyri from Elephantine show fascinating similarities between the rules for slavery govern-

117 Dandamaev, Slavery in Babylonia, 37. 118 Ibid. 119 See, e.g, Isaac Mendelsohn, Slavery in the Ancient Near East. See also Ricks, "Mesopota- mia" in "Ancient Middle East" in Finkelman and Miller, MacMillan Encyclopedia, 66–67. 120 Dandamaev, Slavery in Babylonia, 39–40. 121 Ibid., 42. 122 Dandamaev and Lukonin, Ancient Iran, 153. 123 Ibid (citing examples at 153n29).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 47 ing the Achaemenids and rules that were developed in the early Islamic era.124 In Achaemenid practice slaves were sometimes freed on the condition that the freedperson continue to serve the former owner and provide him or her with sustenance and care.125 This is analogous to the mawlā usage and practice of early Islamic times where the mawlā, or freed slave, became the client of the former owner and continued to provide service after emancipation. The mawlā conception, described in the Islamic legal and literary sources and in the secondary literature as arising from a complex set of Arab ideas about social relationships, identified as wāliya (literally “proximity,” “closeness,” or “being connected,” but often translated as “clientage”), is of central importance in understanding slavery and emancipation in Islamic societies. Arab tribes in pre- Islamic times and into Islamic times would permit membership in the tribe by non-Arabs, whereby the non-Arab is essentially adopted by a patron (also called the mawlā or “master”) who is a full member of the tribe. Freed slaves were often integrated into the tribal life of the former owner through such relationships. The tethering of a freed slave to his or her former owner after emancipation is a practice found in many slave systems. I will spend a good deal of time discussing these ideas and practices in the Islamic context in the next chapter and in the chapter on the Mamluks (Chapter 4). It appears that the Babylonians were perhaps the first to adopt such practices. Sometimes freed slaves in Achaemenid Babylonia were actually adopted by free people.126 Babylonian slaves were permitted to marry free persons.127 Such practices were important vehicles for integrating slaves and former slaves into the society. These practices are similarly found in the legal regimes on slavery developed in early Islam and they achieved full flower during the Mamluk Era. The Babylo- nian and Achaemenid legacies are thus important in understanding historical antecedents for slavery in Islam. Eventually, Alexander’s troops captured Baby- lonia in 331 BCE and these antecedents were then, likely, Hellenized.128 It appears that the practice of self-sale to satisfy a debt began to die out in the Achaemenid period.129 Although slaves could be offered as security for debt, Dandamaev reports that not a single document has been found from the neo-Babylonian and Achaemenid periods attesting to the use of a free person as a pledge for a debt, although such practices continued in Pharaonic Egypt

124 Ibid. 125 Ibid. 126 Ibid. 127 Ibid. 128 Ibid., 96. 129 Ibid., 155.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 48 Chapter 1 and Judea and were prevalent in earlier periods in Babylon.130 Slavery remained available as punishment for conviction of crime and there is also an abundance of evidence showing that the involuntary enslavement of the debt- or or a member of the debtor’s family, especially children, was an appropriate remedy for non-payment of debt.131 The Book of Nehemiah in the Hebrew Bi- ble confirms that children were often given away in slavery to satisfy farming debts.132 Slave women were sometimes hired out as prostitutes and, as in India, a man might sell his wife or daughter into slavery to satisfy an obligation.133 It does not appear that there was any change in the earlier Babylonian rule that an owner might kill his slave with impunity, although the Hammurabic code required the killer of someone else’s slave to pay compensation. Although the matter is not free from doubt,134 the acknowledgment of the slave’s humanity in the homicide law had to await recognition in the later Greek, He- brew, later Roman, and Islamic law. In spite of this disability, many slaves in the neo-Babylonian period appear to have been well treated and permitted to own and lease property, act as witnesses and litigants in court, conduct business, and generally conduct their affairs in a manner similar to free persons.135 Per- haps the most striking case illustrating such conditions is the famous case of the slave Madanu-bel-usur, who was sold several times, given as a dowry in marriage, and inherited. These transactions were largely conducted within one family, wealthy descendants of Egibi. Even though Madanu-bel-usur was the object of such transactions, he was also wealthy and influential in his own right, lending money and litigating cases against free persons, causing the ar- rest of free persons who failed to pay their debts, purchasing and selling slaves who served him, buying and selling large tracts of agricultural land, and father- ing four sons and two daughters by his wife (all of whom were also slaves).136 A slave of such means could not, however, buy his own freedom, as all of the property he possessed was technically the property of his owner.137 Slaves were not all privately owned. Temple slaves served the religious administration and often performed trades and craft making for the religious establishment. They also functioned as guards and doorkeepers, as agents for the

130 Dandamaev, Slavery in Babylonia, 167–169. 131 Dandamaev and Lukonin, Ancient Iran, 156. 132 Ibid. (citing Nehemiah 5: 3–5). 133 Dandamaev, Slavery in Babylonia, 132–136. 134 Ibid., 461 (citing Mendelsohn, Slavery in the Ancient Near East, 122). 135 Ibid., 464. Dandamaev and Lukonin, Ancient Iran, 154. 136 Dandamaev, Slavery in Babylonia, 345–371. The case is cited by David Brion Davis as an example of the complexity of the ancient foundations of slavery. David Brion Davis, Inhu- man Bondage, 27. 137 Dandamaev and Lukonin, Ancient Iran, 154.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 49 priests, and as nominal witnesses to contracts and other documents.138 Dan- damaev and Lukonin, drawing their evidence from documents from the ar- chives of the temple of Eanna in Uruk, detail the fascinating life of a temple slave named Gimillu.139 Gimillu managed large tracts of land for the temple, as well as livestock and other forms of movable property.140 Even though he was tried several times in courts for mismanagement of the property and improp- erly employing a fugitive slave, he enjoyed great influence in the upper eche- lons of the administration of the temple and amassed considerable wealth.141 A temple slave like Gimillu was much more influential in society than a free peasant or farmer. Royal slaves, while of a different class than temple slaves, were also not individually owned and served in a variety of official capacities. Some were described as “slaves of the palace” and others were called “garda,” a term difficult to translate but apparently describing royal slaves who operated economic institutions on behalf of the king. This was quite similar to tax farming and other such economic enterprises operated by Mamluks and other military slaves in later Islamic times.142 The place of slaves in society and their role in political and legal affairs, as shown in the histories of Mesopotamia, Old and New Baby- lon, and the Achaemenid Empire, influenced the approach to slavery in the later Seleucid, Parthian, and Sasanid Empires, all based in Persia or Mesopota- mia and all following each other seriatim or, in some instances, overlapping with each other (Seleucid Empire, 312 BCE to 63 BCE; Parthian Empire, 247 BCE to 224 CE; Sasanian Empire, 224 CE to 651 CE). Slavery was an important facet of imperial life in those empires as well but their rise was preceded by the spread of the Greek and early Roman empires and it seems appropriate, therefore, to look at slavery as it existed in those empires first.

4.4 Greece and the Early Roman Empire Slavery did not always exist in ancient Greece. Herodotus observed that in the time of the Pelasgians, believed to be the first inhabitants of Greece, “the Athe- nians, like other Greeks, did not yet have servants.”143 Evidence of the existence of slaves and of a societal institution that we would recognize today as slavery first appears in the fourteenth and thirteenth centuries BCE in tablets inscribed

138 Dandamaev, Slavery in Babylonia, 469–557. 139 Dandamaev and Lukonin, Ancient Iran, 154–155. 140 Ibid. 141 Ibid., 155. 142 Roger Owen, The Middle East in the world economy, 1800–1914, rev. pbk. ed. (London: I. B. Taurus, 1993), 16. 143 Jean Andreau and Raymond Descat, The Slave in Greece and Rome (Marion Leopold, trans.) (Madison: University of Wisconsin Press, 2006), 7.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 50 Chapter 1 in Linear B, the syllabic Mycenaean script. These tablets described accounting activities, purchases, and administrative authority over men and women (doero and doera) in Knossos and Pylos who were responsible for performing chores and other work or service for human dignitaries or for the gods and god- desses.144 If we were to describe this early system as a form of slavery, there were two types of slaves: slaves of a “human” owner and “slaves of the God” (teojo doero).145 Many of the slaves who worked in the palaces in Knossos and Pylos in this early period were women. The tablets report the existence of a large number of such women (over a thousand) and they performed a great variety of tasks.146 Because it is difficult to identify the subjects as slaves, there is an argument that the tablets simply describe a massive regime of forced labor. Yet, the appearance of the names for some of the workers, showing them to be owned by a specific human being or as being a “slave of God,” suggests otherwise.147 After the Mycenaean period, Greece fell into a great decline, a period lasting some six hundred years. This decline came to an end with the emergence of an era that is now described as the “archaic” period, beginning in about 800 BCE. The period is marked by the rise of the great city-states (poleis) and flourishing literary, scientific, and artistic activity, as well as the beginnings of the philo- sophic traditions. The Homeric epics, penned during the archaic period, offer a literary window on ideas about slavery during that time. The literature suggests that in the Mycenaean-era slaves were primarily obtained by capture in war or piracy and this would account for the predominance of women in that status, as they were frequently spared from death after capture while able-bod- ied men were more often than not killed. Homer’s Odyssey implies that during the archaic period commercial purchase became a major vehicle for entry into an enslaved status. All of the slaves in the Odyssey, whose names and histories we know, were either purchased or were descendants of slaves who were purchased.148 Concomitantly, the Homeric texts do not mention manumission.149 Of course, one must acknowledge that the Homeric epics sought to present an ideal, as opposed to an accurate representation of conditions existing in Greek society. There seems to be no question, however, that capture in war or piracy remained an important source of slaves. Significantly, the epics do not clearly

144 Ibid., 17–8. 145 Ibid., 18; See also Yvon Garlan, Slavery in Ancient Greece, Janet Lloyd trans. (London; Itha- ca: Cornell University Press, 1988) (rev. and exp. ed.), 27. 146 Andreau and Descat, Slave in Greece and Rome, 18. 147 Ibid. 148 Ibid., 21. 149 Ibid., 21–22.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 51 distinguish the status of enslavement from other forms of “dependency” and it seems that one of the poet’s main concerns was to draw attention to such relationships as a central problem in Greek life.150 Even given this ambiguity it is apparent that the Homeric presentation of slavery depicts a “transitory phenomenon that anticipates the emergence of the city, the polis, and the establishment of a complete and ‘definitive’ status of the slave.”151 As the Homeric epics observed, for the first time in Greek life slaves could be purchased for money and they thus became a commodity to be traded in markets, like salt, lumber, or livestock. By most accounts this first occurred in Chi- os, an island close to, and heavily involved in trade with, Asia Minor.152 All of Greece was becoming increasingly involved in trade and colonization at this time, fueling the emergence of a robust money economy. The rise of the money economy led to a widespread system of debt bondage, where a citizen or other resident could pay off their debt to a creditor by agreeing to an open- ended commitment to be effectively enslaved or to permit the enslavement of a family member. Solon, the great lawgiver, legislated an end to this practice in Attica and this change was widely influential in Athens and the other city- states. Note that debt bondage similarly fell out of favor in the legal culture of Babylon, 1000 years earlier. It is said that Solon’s legislation sought to avoid civil unrest that would have resulted if something were not done about the injustices accompanying the debt-bondage system.153 Whether or not this is true, his legislation created a shortage of labor and the vacuum was filled by a shift to a market economy that was based in large part on chattel slavery. Schol- ars have referred to these events as a “great turning point” in Greek history. Finley described the episode as the event that transformed Greek society from a “society with slaves” or a “slave-owning” society into a “genuine slave society,” e.g., a society whose nature and character was defined by widespread dependence on a large population of chattel slaves (usually at least 20% of the population) and dominant involvement of slaves in modes of production. It should be noted that about this time the laws governing slavery changed and, for the first time, slaves in the city were distinctly separated from other social classes, particularly citizens, and clear prohibitions on their behaviors were imposed.154 Slaves from this point on were almost all foreigners or the descendants of foreigners and, in effect, Greek society divided itself into two

150 Ibid., 25. 151 Ibid. 152 Ibid., 27. 153 Thomas Wiedemann, Greek and Roman Slavery (Baltimore: Johns Hopkins University Press, 1981): 2, 37–8. 154 Andreau and Descat, The Slave in Greece and Rome, 29.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 52 Chapter 1 great classes, the free-born, which included citizens and permanent residents, and slaves, who were abjectly dependent on their owners.155 Slaves, male and female, were considered to be no more than chattel and could be used sexually and otherwise employed for any task that the owner saw fit to impose.156 There is no doubt that the lot of the slave was a dishonorable position in Greek life. Slaves did almost all the labor in social settings and there was increasingly widespread importation of foreigners to perform these tasks. Slaves greatly outnumbered free persons. There is a common misconception that those who were considered to be recalcitrant or rebellious were consigned to work in harsh circumstances, such as in silver mines or as galley slaves on war- ships, but this fact is actually historically contested.157 Most of what we know about Greek slavery during the three great periods of ancient Greek history—the archaic period, the “Classical” period, and the sub- sequent Hellenistic period—comes from records of the important city- states—Athens, Sparta, and Troy—and the island of Chios, as well as the Greek colonies in Egypt.158 Greek slavery changed its face in various ways over this one-thousand year period but it never abated. As Gerald E. Kadish has observed: “[s]o far as we can tell, no Greek polis forswore slavery; indeed, it was regarded as normal and was widely practiced long after Hellas had lost its freedom to the Roman imperium.”159 The emphasis on colonization that marked the archaic period caused the number of foreigners in Athens and the other city-states to eventually come to outnumber Greek citizens and permanent residents. It is reported that during the Peloponnesian War (431–403 BCE), the Athenians killed virtually all the men who were lucky enough to survive their attack on the Greek island of Melos and, with impunity, sold all the women and children into slavery.160 Although markets for slaves predominated, capture in war continued to be a prime source supplying slaves to the Greek poleis. Max Weber, in describing the sociology of these societies, famously observed

155 Martin A. Klein, “Ancient Greek Slavery,” in Martin A. Klein, Historical Dictionary of Slav- ery and Abolition (London and Lanham, MD.: Rowman and Littlefield, 2014) (2nd ed.), 48–49. 156 Ibid. 157 J. Thorsten Sellin, Slavery and the Penal System (New Orleans: Quid Pro Quo Books, 2016) (1976); Lionel Casson, “Galley Slaves,” Transactions and Proceedings of the American Philo- logical Assn. 97 (1966): 35–44. 158 Gerald E. Kadish, “Ancient Greece,” in Finkelman and Miller, Macmillan Encyclopedia, Vol. 1, 57. 159 Ibid. 160 Ibid., 59.

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“War is slave hunting.”161 This was undoubtedly true and, additionally, captives came into the enslaved state via capture as a result of piracy, banditry, and slave raiding. Reports of transportation of captured and enslaved populations after military victory or slave raiding are legion.162 Solon also legalized expeditions conducted by individuals “for booty (leia),” which included slaves.163 These practices probably flourished because of the widespread existence of slave markets.164 Historians speculate that there were slave markets at Tanais, Byzantium, Ephesus, in Thessaly, and along the trade route to Athens, as well as in Athens itself.165 Religious festivals and fairs also presented occasions for trading in slaves.166 Garland has argued that, in the case of Chios as well as in Athens, the spread of the concept of (political) liberty reduced the level of ex- ploitation among citizens but also greatly increased a massive recourse to foreign slave labor, causing that population to be reduced to a state that was the polar opposite of liberty.167 Finley pointedly observed that “one aspect of Greek history, in short, is the advance, hand in hand, of liberty and slavery.”168 A great many slaves were children; sometimes those captured in the violent circumstances I have described, and sometimes those born in the house (oikogeneia). The evidence suggesting that the Greeks encouraged reproduction by slaves is equivocal but there is no doubt that the law provided that a child born of an enslaved mother was also a slave and the property of the mother’s owner. In such cases, it did not matter who the father was.169 Although these rules would have encouraged the breeding of slaves, the Oikogeneia were more likely to be manumitted and become “naturalized” residents or “nationalized” persons.170 The law made clear distinctions between the enslaved and the free. Al- though slaves did have the right to testify in court, a slave’s evidence could not be accepted unless it was induced by torture.171 There were several narrow exceptions to this rule. These exceptions mainly involved cases in which the slave

161 Andreau and Descat, The Slave in Greece and Rome 56, citing, at n23, Max Weber, The Agrarian Sociology of Ancient Civilizations, R.I. Frank, trans. (London: Verso Classics, 1976). 162 Patterson, Slavery and Social Death, 111. 163 Garland, Slavery in Ancient Greece, 38. 164 Andreau and Descat, Slave in Greece and Rome, 56. 165 Garland, Slavery in Ancient Greece, 53–54. 166 Ibid., 54. 167 Ibid., 39. 168 Ibid. (quoting Finley, Slavery at 72). 169 Andreau and Descat, The Slave in Greece and Rome, 58. 170 Ibid. 171 Finley, Ancient Slavery, 162.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 54 Chapter 1 was asked to expose a traitor or denounce someone for corruption (the slave testifying under peril of death if he was not believed) or cases concerned with specialized commercial transactions.172 Otherwise the slave could appear in litigation only through a citizen representative.173 Punishment of a slave in Greek society invariably involved the use of a whip. This was true no matter what the slave’s status.174 There were elaborate rules governing the commis- sion of torts and crimes by slaves and, if a citizen or free foreigner injured someone else’s slave, the law required that the wrongdoer compensate the owner in money damages.175 Freed Athenian slaves, who in some cases became metics, could not buy land and also had to be represented by a citizen-patron in legal proceedings. Marriage to an Athenian free person was discouraged. Freedom might be granted on the condition of continued service, consequently freedom in such cases might, in reality, be only an illusion.176 This kind of emancipation was another precursor to the mawlā arrangements seen in Islamic societies. In Greek society there were two primary bases for distinguishing between human beings: citizen versus alien and free versus enslaved. Gender, socioeconomic status, skill or occupation, nationality—none of these were as important as one’s status as a citizen or as a free person.177 There are very few reliable cen- suses of the number of slaves in Greek society at any time in its history. The most reliable are those compiled for the city of Athens by Athenaeus, who famously estimated the presence of 400,000 slaves in a population of 431,000 persons.178 Although the accuracy of his estimate of the slave population has been shown to be suspect, probably because of the failure to distinguish dependent members of households from slaves, what is clear is that slaves probably constituted at least half of the Greek population at that time.179 Greek thinking on slavery is best exemplified in the writings of Plato and Aristotle. Both came to have great influence over legislators, policymakers, and slave owners who came after them. Plato was concerned, among many things, with constructing an ethical, legal, and philosophical vision of justice for society as well as seeking an understanding of what it means to be a just person. He took up these themes in a number of works but his discussions of slavery are

172 Garland, Slavery in Ancient Greece, 42. 173 Ibid. 174 Andreau and Descat, Slave in Greece and Rome, 58. 175 Garland, Slavery in Ancient Greece, 43–44. 176 Wiedemann, Greek and Roman Slavery, 3–4. 177 Kadish, “Ancient Greece,” 59. 178 Andreau and Descat, Slave in Greece and Rome, 42. 179 Ibid., 44.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 55 somewhat scattered and mainly found in The Republic and in The Laws. In sections of The Republic he posited a conception of the “ideal city” and he took on, briefly, the issue of slavery in relation to that conception. There have been, and continue to be, persistent arguments that Plato was against slavery and wanted to see it abolished. These arguments have not carried the day and his admirers are troubled by the fact that The Republic quite clearly suggests that Plato expected that slaves would “form an essential part” of the ideal city’s population and contribute to its excellence.180 In one passage Plato offers a catalogue of denizens in the city who would contribute to its idealized ethos and the catalogue includes slaves, as well as children, women, artisans, and freepersons.181 It is very unlikely that Plato would have included slaves in his vision of the utopia if he intended the institution to be abolished.182 Similarly instructive is the dialogue on slavery in The Laws. Plato set the dialogue among three participants, old men who are retracing the Minos’ steps in an effort to gain wisdom on the creation of law. They discuss slavery in some detail. There are numerous instances where the text sets out the rules to be followed in the treatment of slaves.183 An anonymous Athenian, one of the participants, observes that the slave, unlike other property, is “no easy chattel.”184 He acknowledges that there are many evils that flow from slavery, citing the frequent revolts of the Messenians and the crimes committed by the “Corsairs” off the coasts of Italy and the reprisals that resulted.185 He suggests two courses of action to prevent such occurrences. One involves preventing slaves of any particular nationality or race to predominate, the suggestion being that this would lessen the chances for revolt. The other course is to “accord them proper treatment, and not only for their sakes, but still more for the sake of ourselves.”186 This would mean the elimination of violence and better treatment for slaves than one might employ in dealing with one’s equals. The Athenian (Plato) argues that such behavior exhibits the kind of virtue expected of the just, “[f]

180 Gregory Vlastos, “Does Slavery Exist in Plato’s Republic?,” Classical Philology 63(4) (Octo- ber 1968): 294 (citing The Republic 433D); Glenn R. Morrow, “Plato and Greek Slavery,” Mind 48 (190) (April 1939): 186. 181 Plato, Republic, 433D. 182 Ibid. For a recent argument positing that Plato was opposed to slavery see Joseph Gonda, “An Argument Against Slavery in The Republic,” Dialogue 55(2): 219-244 (2016), available at: (March 2016). Accessed March 5, 2019. I am indebted to my colleague Daniel Schiff for this reference. 183 Plato, The Laws 6.777e, 8.845a, 9.854d, 9.868bcd, 9.872b, 9.881c, 9.882ab, 11.914ab, 12.949a. 184 Plato, The Laws, 6.777c (quoting Plato, The Laws, trans. R.G. Bury (Cambridge, MA: Har- vard University Press, 1926 (repr. 1961)), Vol. 1, p. 475. 185 Ibid. 186 Ibid., 6.777d.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 56 Chapter 1 or it is his way of dealing with men whom it is easy for him to wrong that shows most clearly whether a man is genuine or hypocritical in his reverence for justice and hatred for injustice.”187 This is the recommended behavior for a master, king, head of the family, and anyone who “possesses any kind of absolute power over a person weaker than himself.”188 The language used by Plato in describing the behavior expected of an owner of slaves is a harbinger of the Qurʾanic conception of the obligations of an owner of slaves, one who possesses such persons “by the right hand.” Plato advocates a direct relationship between piety, on the one hand, and fair and just treatment of slaves on the other. As we shall see, this view is echoed in the Qurʾanic view of slavery as well. The argument is frequently made that Plato could not have advocated the abolition of slavery because all of his contemporaries accepted the institution as a given. This argument does not make sense because there were many in- grained aspects of Greek social and political life that Plato objected to and he expressed those objections in clear and unambiguous language. On the other hand, his less firmly expressed but clear support for the continuation of slavery and his inclusion of a regime of slavery as an essential aspect of an ideal city that would provide its denizens with a “good life” form part of the basis for the argument that, contrary to many opinions, Plato was in fact a totalitarian thinker or, perhaps more charitably, an extreme and antidemocratic conserva- tive. Karl Popper’s influential book, The Open Society and its Enemies, takes this position.189 Popper argued that there was, in fact, a budding movement to abolish slavery in existence during Plato’s time and that Plato was indeed opposed to its success, instead arguing for a benevolent and pietistic, but slavery- friendly, approach to the ownership and management of slaves in Greek society.190 His arguments in The Republic and the dialogue in The Laws, the one place where there is an extensive discussion of the issue, support this view. We will see that the Qurʾan’s view of slavery is also benevolent and pietistic and, some would argue, slavery-friendly. Indeed, as I have noted, there are great similarities between the Platonic and the Qurʾanic views of slavery. There are also, however, some striking differences, the chief ones being the Qurʾan’s stri- dent and emphatic insistence on a pietistic duty of emancipation, as well as its recognition of the idea that the emancipation of slaves is in the public interest,

187 Ibid., 6.777e. 188 Ibid. 189 Karl R. Popper, The Open Society and its Enemies (London: G. Routledge and Sons, 1945) (Princeton: Princeton University Press, 1945 [1971]). 190 Amir Meital and Joseph Agassi, “Slaves in Plato’s Laws,” Philosophy of the Social Sciences 37 (3) (September 2007): 321-325 (citing The Open Society, 43, 70, 222, 236, and 278).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 57 and the complete absence of reference to ethnicity or race in the its discussions of slavery. There is no similar stress on emancipation in Plato’s writings on slavery and, as Gregory Vlastos convincingly demonstrated over seventy years ago, Plato saw slavery as part of the natural order of things, “a diversity of native endow- ment,” and this would lead to the organization of a regime of enslavement based on race, ethnicity, or national origin.191 Indeed, Plato accepted that a slave did not and could not possess and exhibit the traits of character found in free persons. In his view, slaves could not contemplate theoretical inquiries or apprehend rational ideas and they had “an inability to control desire or passion.”192 This would lead to the conclusion that some are “naturally suited” for enslavement. Aristotle, Plato’s most illustrious pupil, much more forcefully posited that slavery was part of the natural order of things. Vlastos observed that Aristotle’s discussion of slavery, in the first book of The Politics, is “… the most famous text of antiquity on this topic….”193 Aristotle accepted the existence of hierarchical relationships in society and recognized the role played by household depen- dents (slaves, women, and children) in family life.194 He famously argued that “[i]t is manifest that … some are free men and others slaves by nature.”195 This justification for slavery certainly supports the view that the employment of ethnic or racial distinctions in deciding who should be enslaved is consistent with a perceived natural order of things.196 Aristotle’s position on slavery was thus somewhat of a retreat from Plato’s emphasis on piety and fair treatment of slaves. One of his main concerns was to defeat or perhaps cabin the argument that the institution of slavery was against nature.197 To be sure, Aristotle did not advocate for or support the mistreatment of slaves. Yet, he unequivo- cally asserted that stern correction for misdeeds, in the same way that domestic animals and livestock are corrected, should be the order of the day.

191 Gregory Vlastos, “Slavery in Plato’s Thought,” The Philosophical Review 50,3 (May, 1941): 289–304, 302. 192 Morrow, “Plato and Greek Slavery,” 187. 193 Vlastos, “Slavery in Plato’s Thought,” 301. 194 Peter Garnsey, Ideas of Slavery from Aristotle to Augustus (Cambridge, UK and New York: Cambridge University Press, 1996), 13 (citing Aristotle, Politics 1252a24–b15 and 1259a38– 1260b26). 195 Ibid., 14 (citing Gregory Vlastos, Platonic Studies (Princeton: Princeton University, 1973) and Aristotle, Politics 1255a1–2). 196 Benjamin Isaac, The Invention of Racism in Classical Antiquity (Princeton: Princeton Uni- versity Press, 2006), 505. 197 Aristotle, Politics, 1253b20 (cited in Vlastos, “Slavery in Plato’s Thought,” 301n53).

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The early Roman conception of slavery owes much to its Greek predecessor. Evidence dating to the founding of the city of Rome in 754 BCE contains references to slaves, usually described in the collective sense.198 Slaves populated the early Roman cities in the western Mediterranean but their numbers greatly increased with the spread of Roman armies throughout the eastern Mediter- ranean, the Middle East, Western Europe, and North Africa.199 At the peak of Roman power, an estimated 2 million slaves, about one-third of the population, inhabited Italy.200 The evidence documenting the number of slaves outside Italy is much more sparse and it is dangerous to make estimates. The general consensus among historians is that the numbers were not high, particularly for Egypt, where there is more evidence.201 Estimates for North Africa posit that slaves were no more than 15 percent of the population and probably less than 10 percent of the population of Egypt, outside Alexandria.202 On the other hand, the conquering Roman armies established trading networks that were often used by slave traders and these networks facilitated the transport of large numbers of slaves back to the latifundia in Italy.203 A full treatment of the varieties and forms of Roman slavery is beyond the scope of this work but what is most important for us is the nature and characteristics of the Roman law of slavery because it is argued by some that it had great influence on the development of the law of slavery in Islam. The study of the Roman law of slavery is also a vast subject; for our purposes I will first focus on the early development of the law, showing how it built on legal concepts and ideas introduced by the Greeks, and then I will concentrate on the law that emerged in the Eastern Roman Empire (Byzantium), after the fall of the western Empire in 476 CE, as it appears that the Byzantine rules may have poten- tially had the most palpable influence on the law of slavery as it developed in early Islam. Like the Greek slave, the Roman slave was nothing more than a chattel, an item of personal property under the absolute control of the owner.204 Unlike the Greek system of slavery, the Roman system early on developed a highly sophisticated and nuanced approach to the legal status of the slave and the juridical regulation of slavery. For example, in the Institutes of Gaius, a

198 Andreau and Descat, Slave in Greece and Rome, 31 (citing Dionysus of Hallicarnassus, Ro- man Antiquities and Livy, Roman History). 199 Klein, “Ancient Roman Slavery,” in Klein, Historical Dictionary of Slavery and Abolition, 51. 200 Ibid. 201 Andreau and Descat, Slave in Greece and Rome 49, 51. 202 Ibid., at 52. 203 Ibid. 204 Wiedemann, Greek and Roman Slavery, 15.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 59 textbook of Roman law for students authored by an otherwise unknown jurist in the second century CE, the writer made observations that would profoundly influence Western conceptions of law for two millennia hence:

1. Every community that is governed by laws and customs uses partly its own particular law and partly the law common to all mankind. For whatever system of justice each community establishes for itself, that is its own particular law and is called ‘civil law’ as the law particular to that community (civitas), while that which natural reason has established among all human beings is observed equally by all peoples, and is called ‘law of nations’ (ius gentium) since it is the standard of justice which all mankind observes. Thus the Roman People in part follows its own particular system of justice and in part the common law of all mankind. We shall note what this distinction implies in particular instances at the relevant point. 8. The system of justice that we use can be divided according to how it relates to persons, to things, and to actions. Let us first see how it relates to persons. 9. The principal distinction made by the law of persons is this, that all human beings are either free men or slaves. 10. Next, some free men are free-born (ingenui), others freedmen (liber- tini). 11. The free-born are those who were free when they were born; freedmen are those who have been released from a state of slavery. 12. Freedmen belong to one of three status groups: they are either Ro- man citizens, or Latins, or subjects (dediticii).205

The textbook goes on to describe the Roman law governing how freedmen might become citizens and the distinctions between that status and the two other statuses available after emancipation, e.g., the Latin and the dediticii. The rules were complex and detailed. Keith Hopkins, in comparing Roman slavery to slavery in other societies that fit Finley’s definition of a “genuine slave society,” noted four important aspects of Roman slavery. These aspects are confirmed in the law. They were: (1) the existence of an important body of professional and skilled slaves with high status; (2) a high rate of slave manumissions; (3) assimilation of former slaves into a “citizen society” on terms of near equality with native-born Roman citizens; and (4) massive importation of agricultural slaves to cultivate land already being cultivated by citizens.206 “Fre-

205 Gaius, Institutes, book 1, 1: 8–12, excerpted and translated in Wiedemann, Greek and Ro- man Slavery, 23–24. 206 Keith Hopkins, Conquerors and Slaves (New York; Cambridge: Cambridge University Press, 1978), 101–102.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 60 Chapter 1 quent victories enabled the Romans to bring back to Italy huge quantities of booty in the form of treasure, money, and slaves.”207 “… [I]t is worth noting that, although slaves were often a significant element in war booty for both soldiers and generals, there is no evidence that the capture of slaves was a primary objective of Roman warfare. Slaves were an important but incidental product of empire.”208 This is the majority view among historians. Nonethe- less, Max Weber later called the Roman enterprise “booty capitalism.” This form of imperialism was widely seen throughout the Middle East.209 Roman soldiers, followed by colonial administrators and tax collectors, brought the imperium to the far ends of the Mediterranean world, including the Arabian Peninsula. There is no doubt that Roman legal and juridical institutions were influential in the organization of the societies that formed their subject populations. Slavery and slave trading were among those institutions. Perhaps the most distinguishing characteristic of the early Roman system of slavery, which carried forward to the later Byzantine approach, was the ability of the Roman slave to be emancipated and, in some cases, to become a Roman citizen.210 This was markedly different from Greek slavery. The Roman legal culture privileged and encouraged assimilation of its formerly enslaved denizens and this was an important development for the entire Mediterranean world.211 Although there is great controversy over the issue, Roman influence over the legal culture of the Muslim Mediterranean world should not be underesti- mated. The four aspects of Roman slavery noted above by Hopkins could also describe key aspects of the well-developed system of Muslim slavery that emerged after the death of the Prophet. Comparisons of the two systems therefore flow easily and the argument has been made that it was Roman slavery that gave Muslim slavery its essential character.212 The late Patricia Crone, perhaps the leading exponent of this thesis, acknowledged that the theory has some flaws, as it was the later Roman law, including the Byzantine systems,

207 Ibid., 104. 208 Ibid., at 112–3. 209 Ibid., at 113. 210 O.F. Robinson, “Ancient Rome,” in Finkelman and Miller, Macmillan Encyclopedia, Vol. 1, 71. 211 Ibid., 73–75. 212 Crone, Roman, Provincial and Islamic Law, 77–88; Ignaz Goldziher, “The Principles of Law in Islam” in The Historians’ History of the World, ed. Henry Smith Williams (London and New York: Hooper and Jackson, 1908), 296; M. Gaudefroy-Demombynes, “Sur les origines de la justice musulmane.” In Mélanges syriens offerts à René Dussaud (Paris, 1939) (cited by Crone in Roman, Provincial and Islamic Law at Appendix 3, 107).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 61 influenced by Christianity, that the Muslim Arabs came into contact with.213 This fact is likely not that significant, however, because many aspects of the early Roman law, especially the rules governing the patronate, that is, the system of rights and obligations arising out of the emancipation of a slave, did not change as the Roman legal systems evolved.214 Professor Crone based her argument on the striking similarities between the Roman patronate, providing for rights of the head of a family over the Roman freed slave (described as the paramonē), and the Islamic walāʾ, the fictitious kinship tie between Muslim manumitter and freed slave, as the concept was developed by the early Muslim jurists in Syria and Iraq. Indeed, the Roman emphasis on the utility and merit of slave emancipation and the Islamic insistence on the pietistic imperative of emancipation, with the similar roles accorded to freed slaves in both legal and social systems, might cause an observer to conclude that the Muslims borrowed these conceptions from the Romans. There were, on the other hand, stark differences in the two systems. The different legal status accorded to children of unions between the free and the enslaved, which in the Islamic case was actually much more like the Babylo- nian and Sasanian rules, is probably the best example. Under Roman law the child inherited the status of the mother. If the mother was a slave, then the child was the property of her owner.215 In the classical Islamic law, if either parent were free, the child was also free. Most often, this involved a union between a free father and his enslaved concubine. In such cases the child was free and could inherit from its father. I will discuss the tremendous impact of this rule in more detail in the next chapter. Roman law never recognized marriage between a free person and a slave.216 Even marriages between persons of senato- rial status and freed slaves were prohibited.217 The Qurʾan, and the Islamic law derived from it, on the other hand, placed much fewer restrictions on such marriages. The Roman law concept of the paterfamilias, which granted absolute power over the family to the senior male ascendant, was unknown in Is- lamic law. The Qurʾan actually privileged the female heirs in Islam’s intestate inheritance system (6 of the 9 mandatory Qurʾanic heirs are women). It also did not allow a testator to pass all of his or her property by will, limiting testa-

213 Crone, Roman, Provincial and Islamic Law, 103. 214 Ibid., 77–8. 215 Buckland, Roman Law of Slavery, 398. 216 Judith Evans Grubbs, “Illegitimacy and Inheritance Disputes in the Late Roman Empire,” in Inheritance, Law and Religions in the Ancient and Mediaeval Worlds, ed. Béatrice Caseau and Sabine R. Huebner (Paris: ACHCByz, Association des amis du Centre d’histoire et ci- vilisation de Byzance, 2014), 28. 217 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 62 Chapter 1 mentary bequests to a maximum of one-third of the estate. The Roman law, on the other hand, allowed complete disposition of property by will.218 Further, certain classes of persons could not pass property by will under the Roman law. Generally, a Roman testator had to be a Roman citizen who was sui iuris and, until late in the empire, there were impediments imposed on the ability of women to freely devise property by will.219 This was not so in Islam which, for the first time in human history, gave all free women the unfettered power to accomplish testamentary transfers of their properties and mandated full intestate succession in the same manner as such rights were given to men. So, while Roman law was perhaps influential in some areas, in other areas it appears that the new Islamic legal and jurisprudential approach was, indeed, a stark tabula rasa. The one area where there were startling similarities between the two systems is the area involving the rights and obligations of emancipated slaves and their relationship with their manumitters. These rights and obligations were part of a larger set of relationships known in Arabic as the walāʾ (“friendship, amity, benevolence, … fidelity, fealty, allegiance, devotion, loyalty, clientage…,” from wāliya, meaning “to be near”),220 thus spawning a class of manumitted slaves known as the mawālī (sing. mawlā).221 These relationships are important and will occupy much of my attention in the next chapter on slavery in early Islam and in the chapter on the “Mamluk/Ghulam Phenome- non.” In my earlier discussion of neo-Babylonian and Achaemenid slavery, I noted the existence of similar arrangements between freed slaves, their former owners, and other free people who sought to adopt slaves and incorporate them in their family life. The Roman practice was quite similar but it appears it was not the only contributor to the Islamic practice. Several historians have noted that the pre-Islamic Bedouin tribes also recognized clientage as a central feature of their lives.222 The mawlā conception is thus central to an understanding of slavery in Islam whether or not you conclude that it was borrowed

218 George Mousourakis, Fundamentals of Roman Private Law (Heidelberg and New York: Springer, 2012), . 219 Russ VerSteeg, The Essentials of Greek and Roman Law (Durham, NC: Carolina Academic Press, 2010), 176. 220 Hans Wehr, A Dictionary of Modern Written Arabic (Arabic-English) (Wiesbaden: Harras- sowitz, 1979) (J. Milton Cowan, ed.) (4th ed.), 1289 and 1288, respectively. 221 The word has many meanings in Arabic. In the sense used here it means “freedperson,” “protégé,” or “client.” Wensinck, A. J., and P. Crone “Mawlā,” in Encyclopaedia of Islam Sec- ond Edition, Edited by P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.R. Hein- richs. Consulted online on 27 June 2017. . 222 See, e.g., Ira M. Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 1988), 42.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 63 from the Roman and Byzantine practices or that it has roots in Babylonian and Sasanid pre-Islamic history or was independently developed by the pre- Islamic Arabs.

4.5 The Nabataeans In contrast to the Roman and Byzantine empires, the pre-Islamic influences of the Nabataean Empire and its customs of trade and maritime commerce have not received the same degree of attention from historians. This may be because the origins of the Nabataean culture and civilization are shrouded in mystery. Historians and archaeologists are fond of referring to the Nabataeans as a “lost” civilization.223 We know that in the sixth century BCE the Nabatae- ans built the great city of Petra in what is now southern Jordan and that they had a written language similar to ancient Aramaic. Just prior to the Christian era, the Nabataeans established an extensive trading network, traversing the Arabian Peninsula, the Silk Road, and Northeast African regions by land and the Red Sea, Eastern Mediterranean, Persian Gulf, and the Indian Ocean by sea.224 The Nabataean culture and its imperial reach “stretched at their height from port towns on both the Red Sea (Leuke Kome, Suez, or Bernike) and the Persian Gulf (at Gerrha, on the water near the border of present day Saudi Arabia and Qatar), not to mention Rhinocolura (El Arish), Gaza, and Beirut, all on the Mediterranean Sea.”225 In the heyday of the culture, Nabataeans controlled the frankincense trade, emanating from Yemen, and important aspects of trade along the Silk Road, beginning in Damascus and crossing east through Babylon toward the great cities of central Asia.226 At the risk of being accused of engaging in rank specu- lation, I will assert that it seems probable that the Nabataeans also traded in slaves. The importance of the Nabataean influence on slavery in Islam is over- shadowed by comparisons with the Roman system, especially the practices in

223 Udi Levy, The Lost Civilization of Petra (Edinburgh: Floris, 1999); Jane Taylor, Petra and the Lost Kingdom of the Nabataeans (Cambridge, MA: Harvard University Press, 2002) (New York and London: I.B. Tauris, 2002); Christian Augé, Petra: Lost City of the Ancient World (New York: Abrams, 2000). 224 Taylor, Petra and the Lost Kingdom, 7 (map); Raoul McLaughlin, Rome and the Distant East: Trade Routes to the Ancient Lands of Arabia, India and China (London and New York: Contiuum, 2010), 62–65. 225 Jesse Benjamin, “Of Nubians and Nabateans: Implications of Research on Neglected Di- mensions of Ancient World History,” in Conceptualizing/Re-Conceptualizing Africa: The Construction of African Historical Identity, ed. Maghan Keita (Leiden: Brill, 2002), 31, 42. 226 Ibid. See also for extensive discussion of the Nabataean civilization and its role in Middle East history and the writing of the Daniel Gibson, the creator of the website. Daniel Gibson, The Nabateans: Builders of Petra (Surrey, BC: Canbooks, 2002).

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Map 1.2 The Nabataean Empire and trade routes. Map drawn by Mujahid Khan the Roman provinces.227 This seems so only because we do not have much information on the Nabataean approach to slavery. There are some important points that should be made, however. The Nabataeans were not colonists or imperial interlopers, as the Romans were. They were an indigenous civilization that used an indigenous language, and their civilization inherited much from the indigenous civilizations that preceded it, particularly the Afro-Irano-Se- mitic civilizations I have described. Those trading networks were extensive and it is likely that many of the commercial conventions and trading networks later seen across the Arabian Peninsula were established by the Nabataeans and other indigenous desert-dwelling groups. In the first century CE the Ro- mans incorporated the Nabataean civilization into their provincial system, effectively colonizing it. There is no doubt that Rome presented an outsized influence on events on the peninsula, especially in the provinces of the Levant, but the Nabataean influence, particularly in the desert areas, deserves much

227 See, e.g., Crone, Roman Provincial and Islamic Law.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 65 more attention. The paucity of sources makes such an endeavor difficult and there is not much more that can be said about it here.

4.6 Later Roman and the Byzantine Empires The regulation of slavery was greatly liberalized in the later Roman period and this is sometimes pointed to as also having an important influence on the Is- lamic law. Homicide of a slave became a crime and the means by which eman- cipations could occur were steadily increased.228 Slaves were permitted to deal in property and, should they be emancipated, they were permitted to become full Roman citizens. The ownership of slaves became an increasingly expensive undertaking as the empire began to decentralize and the great expeditions seeking the capture of slaves, characteristic of the Republican period, became much less frequent. Wage labor also became more popular with entrepreneurs and this facilitated more frequent instances of emancipation. The advent of Christianity undoubtedly also had an effect, as it taught that Christians had moral obligations toward their slaves, although this development did not necessarily encourage emancipation.229 Generally, non-Christian slaves who converted to Christianity remained slaves. Nonetheless, as with the later Islamic approach, emancipation of a slave was seen as an act of piety and, in the Byz- antine hagiographic literature, a step toward sainthood.230 Rotman argues that “Christian formulas of emancipation, such as ‘it is the will of God that all men be free…. God created all men free and it was war that made them slaves’ were not found everywhere.”231 Nonetheless, it does seem clear that the Byzantines rejected the Aristotelian idea that some men are “naturally” enslavable. The Byzantine jurists separated, where they could, the attitude of the church from the attitude of the state.232 Although neither the church nor the Byzantine state conceived of slavery as a tenet of natural law, avenues toward emancipation might take different paths and, as Rotman shows, slavery, especially when imposed by state law after war, was not necessarily seen as a “harmful phenomenon.”233 Thus we see a liberalization of the law of slavery under the Byzantines, undoubtedly due to Christian and perhaps geopolitical influences and a rejection of Aristotelian notions, but no discussion of abolition. There were at least three ways one could become a slave in Byzantium: (1) birth from a slave mother; (2) self-sale, provided the subject was over the age of

228 Buckland, Roman Law of Slavery, 36–38. 229 Rotman, Byzantine Slavery, 139. 230 Ibid., 134. 231 Ibid., 135. 232 Ibid. 233 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 66 Chapter 1 twenty; and (3) captivity. The third category was reserved for those “of foreign provenance.”234 Under some circumstances, one might be enslaved due to un- fortunate involvement in acts of piracy or the slave trade or as a result of a forced labor edict or some other order from the government.235 The three means of ingress outlined above remained the main engines of Byzantine slavery. The Novella of Leo VI put an end to the self-sale method but parents and others in loco parentis continued to sell children into slavery in order to pay debts.236 The same law permitted a person to voluntarily sell themselves into slavery if they wished to marry a slave.237 Slavery also remained available as punishment for crime.238 The early Roman law continued to provide the initial starting point for determining the status of a slave in the late Roman Empire and early Byzantium.239 The status of a child born of slaves continued to be determined by the status of the mother. If the mother was free during preg- nancy the child would have the status of a freeborn person, even if the father were enslaved.240 On the other hand, if the mother was a slave, the father’s status did not matter. The child was born enslaved and became the property of the mother’s owner. Buckland reported this rule in a very straightforward manner: “The general principle is simple. The child born of female slave is a slave, whatever be the status of the father; if the mother is free the child is free, whatever the status of the father.”241 Status was determined at birth, not at conception.242 As I have noted, this was markedly different from the Islamic rule that emerged during the period immediately after the death of the Prophet and this distinction, among others, tends to undermine Professor Crone’s “borrowing” thesis. Distinctions were made in Byzantine practice between slaves born in the empire and those imported, usually through sale or gift, from outside. A slave born in the empire could achieve freedom if he or she could show that he or she had been wrongfully reduced to slavery. There was less concern shown for the provenance of slaves from outside the empire as the lawfulness of their enslavement was to be determined by the law of the foreign jurisdiction and

234 Ibid., 25. 235 Ibid. 236 Ibid., 25–26. 237 Ibid., 25. 238 Ibid. 239 Ibid. 240 Ibid. 241 Buckland, Roman Law of Slavery, 398; also quoted in Patterson, Slavery and Social Death, 139. 242 Patterson, Slavery and Social Death, 139.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 67 this information often was not readily available.243 These rules also differed from those crafted under the new Muslim empires. Byzantium was constantly at war with enemies on its borders so there was never any shortage of slaves who entered the state of enslavement through captivity.244 Rotman has shown that, with respect to war captives, the Byzan- tine conception really involved four kinds of war captives: (1) soldiers taken prisoner during a military operation; (2) residents of a city or region captured by their enemy after military defeat; (3) persons captured by an enemy during a raid; and (4) persons kidnapped by pirates.245 Interestingly, the Byzantine practice, following the Roman law, considered the Byzantine captured by an enemy in war to be lawfully enslaved. Capture during a slave raid or capture by a pirate, on the other hand, was considered to be illegal and the Byzantine law did not recognize this enslavement, although there were variations, depending on the circumstances. A non-Byzantine captured by pirates and sold in the slave market might very well be made subject to the Byzantine slave regulations even though his capture was considered to be illegal. The Byzantines developed an elaborate diplomatic practice seeking to accomplish the return of captives taken in war. As Hugh Kennedy has shown, this practice became a major subject of discussion and contact between the Byzantines and the tenth- century Abbasid Caliphate, with marathon meetings conducted involving massive exchanges of prisoners.246 The Byzantine classifications of enslaved captives were further complicated by a change in the law that refused to recognize the dissolution of a Christian marriage interrupted by the enslavement of one of the partners. Thus, if a married Byzantine was captured in war and then sold in a slave market in enemy territory, ultimately to be brought back into Byzantine territory, his status as a slave remained, unless he was ransomed by his family or by the church, even though he had also continued to remain lawfully married, which would normally be a perquisite that could be exercised only by a free person.247 Byzantine law on the character of war booty seems to have changed as well and this may also have been due to the advancing influence of Christian theol-

243 Ibid., 26. 244 Ibid. 245 Ibid., 27. 246 Hugh Kennedy, “Byzantine-Arab Diplomacy in the Near East from the Islamic Conquests to the Mid Eleventh Century,” in Byzantine Diplomacy: Papers from the Twenty-fourth Spring Symposium of Byzantine Studies, Cambridge, March 1990, eds. Jonathan Shepard and Simon Franklin (Brookfield, Vt; Aldershot, Hampshire, UK: Variorum, 1990), 133, 137– 141. 247 Rotman, Byzantine Slavery, 31–33. The law was changed again in the eighth century to deal with this problem, stipulating that a Byzantine returning to the empire after a period of enslavement in a foreign land automatically regained his freedom. Ibid., 33.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 68 Chapter 1 ogy. Captives were not considered war booty and the strategos either had to keep them with him or take them to the Emperor for a possible exchange of prisoners of war.248 The Byzantine slave trade was quite extensive, also involving a sea-borne trade on the Mediterranean, in the Red Sea and the Persian Gulf, and across the Indian Ocean.249 It complemented the spice trade and an active commerce in other luxuries. A large slave market existed in Constanti- nople.250 Slaves in the Byzantine world performed many functions, from that of laborer and domestic servant, to concubine and entertainer, to more skilled tasks, including work in the professions of architecture, accounting, medicine, art, and music. Many of these skilled tasks were performed by eunuchs. We will see that, as the new Islamic empire took shape after the death of the Prophet Muhammad, Byzantine craftsmen and skilled professionals were in high demand in conquered lands that were formerly administered by the Byzantines. Many of these professionals had been slaves in the Byzantine polities and they often continued to function as slaves under their new Muslim masters. The use of eunuchs in such capacities was particularly common among the Byzantines and when the Abbasids took over imperial centers formerly administered by the Byzantines, the practice of using eunuchs to perform tasks for the state (caliphate) was robustly revived. In sum, slavery and slave trading were “persistent features” of Byzantine society. Slaves were a special class of property with few rights. Slaves could not own property or give evidence in court. Church leaders emphasized the mu- tual obligations of owners and slaves, which generally required fair treatment by owners on the one hand and obedience by slaves on the other. State legal regulation did not always rigorously enforce these obligations as they were considered to be moral duties without legal force. Sources for slaves included those born into households from enslaved parents or slave mothers and those captured in war. Piracy also supplied slaves for the society and there was a vigorous market for slaves, including the large market in Constantinople, regulated by imperial decree. Self-sale to pay debts was prohibited by law but sale of children, especially abandoned or orphaned infants, was tolerated. It appears that some Byzantine nobles owned large numbers of slaves. The wealthy widow Danelis of Patras is reputed to have brought some 3,000 slaves to Con- stantinople in the ninth century CE as a gift for Basil I. Although slaves worked agricultural lands, it is said that slavery in Byzantine society was largely an urban phenomenon, with slaves performing a great number of tasks in the city,

248 Ibid., 37. 249 Ibid., 57. 250 Ibid., 68. The account that follows in text is drawn substantially from Rotman's excellent account and the sources he cites.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 69 including household chores, child-rearing, weaving, brick-making, pottery, and work as artisans. Eunuchs in significant numbers were employed by the state (and the church?) for important functions requiring trust and fidelity. Reli- gious texts supported the institution of slavery. By way of example, 1 Timothy 6:1–2 says:

All who are under the yoke of slavery should consider their masters wor- thy of full respect, so that God’s name and our teaching may not be slan- dered. Those who have believing masters should not show them disrespect just because they are fellow believers. Instead they should serve them even better because their masters are dear to them as fellow believers and are devoted to the welfare of their slaves. These are the things you are to teach and insist on.251

Similarly, Colossians 3:22, as part of a set of instructions to Christian households, provides:

Slaves, obey your earthly masters in everything; and do it, not only when their eye is on you and to curry their favor, but with sincerity of heart and reverence for the Lord.252

Eventually Byzantine slaves obtained the right to marry, the sacraments of baptism, the protections of the criminal law, and increased avenues for manumission. In that regard, a special church service was developed for the manumission of slaves.253

4.7 Hebrew Slavery There is very little archaeological or archival material available that sheds light on the nature and character of slavery among the Jewish people in ancient times. In spite of the paucity of sources, there is no doubt that the institution existed. We know this primarily from the Hebrew Bible, which extensively

251 Holy Bible, 1 Timothy 6:1–2 (New International Version) (Biblica, 2011), accessed online at . Accessed on 28 June 2017. 252 Holy Bible, Colossians 3:22 (New International Version) (Biblica, 2011), accessed online at . Accessed on 28 June 2017. 253 Much of this summary description is also taken from Marcus Louis Rautman, Daily Life in the Byzantine Empire (Westport, CT: Greenwood Press, 2006), 21–22. See also Demetrios Constantelos, Poverty, Society, and Philanthropy in the Late Medieval Greek World (New Rochelle, NY: Aristide Caratzas, 1992), 103–114.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 70 Chapter 1 regulated the practice. Interpretations of these regulations continued with the development of the Mishna and the rabbinic laws of the Talmud. In order to show the influence of Hebrew regulations on the Islamic rules, it will be useful to recount the Hebrew regulations here although there is no certainty that they reflected the reality of actual practice. The usual term used to describe a slave in the Old Testament is the word èbed, derived from the word àbad, which means “to work.”254 The word also had a wider meaning, describing a “servant” or one who owes fealty to God or to a king or ruler or even to one of higher social status.255 This usage seems to be analogous to the earlier Babylonian and Persian practices, where all citizens were described as “slaves” of the king or emperor. The Hebrew usage of èbed is very similar to the usage of the Arabic word ʿabd, which can also describe a servant, although in Qurʾanic usage it describes only either a chattel slave or a “slave of God.” The word is not used in Arabic to describe a citizen or subject of the ruler. This is an important difference from the prior usages in the Hebrew and Mesopotamian languages. Although there are a number of instances of individual enslavement described in the Hebrew Bible, one of the most salient characteristics of the institution, as described in the Bible, is the penchant of the Hebrews to subject entire other nations to slavery. Perhaps the best-known example is the fact that the Israelites repeatedly subjected the Canaanites to slavery, even in their own land. For instance, the inhabitants of Gideon, who were Canaanites, were reduced to “perpetual slavery” after having tricked the Israelites into entering into a treaty.256 David subdued the Philistines, the Edomites, the Moabites, and the Arameans and they all “became his tribute- paying slaves.”257 Similarly, Solomon took a census of all the non-Israelites in the land, reducing them to slavery, and he instituted a regime of forced labor, drawing workers from other nations, in order to build the Jerusalem Temple.258 The Philistines became slaves by virtue of a dare laid down by Goliath, one of their own, who lost a physical contest with David.259 Orlando Patterson has described a slave in such circumstances as a “genea- logical isolate” in that he or she was deracinated and cut off from his or her

254 Dandamaev, “Slavery in the Old Testament,” in David Noel Freedman, ed., Anchor Bible Dictionary, 6: 62. 255 Ibid. 256 Ibid., citing Josh. 9:23. 257 Ibid., citing 2 Sam. 8:2, 14; 1 Chr. 18:2, 6, 13. 258 Ibid., citing 2 Chr. 2:17; 8:7–9. 259 Ibid., citing 1 Sam. 17:25.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 71 language, ethnic origins, family ties, culture, and religion.260 This may be an exaggeration but there is no doubt that the law of slavery in ancient Hebrew communities recognized a distinction between the Israelite or Hebrew slave and the non-Hebrew slave, with the non-Hebrew slave being less likely to remain in touch with family or know his or her origins. This is confirmed by the famous distinction laid down in Exodus, legislating that the Hebrew slave, who most likely sold himself into slavery to satisfy debts, must be set free after seven years of service (the “sabbatical” year) while the non-Hebrew slave could be held in bondage for life.261 If the Hebrew slave was married at the time of enslavement, his wife must also be set free and the owner was obligated to send them off with a gift to enable a fresh start in life.262 On the other hand, if the slaveowner supplied the Hebrew slave with a wife, she, and any children produced from the union, remained the slaves of the owner.263 Although Leviti- cus, another source of law on slavery, seems not to recognize the “sabbatical” year as a year of liberation, it similarly reminds the Hebrews that, when they manumit their slaves, they should remember their own enslavement in Egypt.264 Leviticus recognizes the fact that someone might sell themselves into slavery to relieve poverty, mandating manumission for Hebrew slaves in the sabbatical (seventh) year, but it otherwise placed no restriction on the purchase of slaves of other ethnic origins and these slaves may be re-sold, gifted, or inherited, with no temporal limit on ownership for such slaves.265 In a famous passage, Exodus permitted the Hebrew slave to eschew freedom in the sabbatical year and remain with his master for life. In such cases, the master would follow a procedure requiring him to take the slave to a door and pierce his ear with an awl.266 Debt slavery was widely practiced in ancient Israel. The Jewish law permitted parents to sell their children into slavery to satisfy a debt, although the creditor was not free to sell the bonded relative. He was, instead, required to

260 Hezser, Jewish Slavery, 29 (quoting Patterson but ascribing the phrase to Claude Meillas- soux). 261 Exod. 21:1–7; Deut. 15:12–14. 262 Hezser, Jewish Slavery, 29. Deuteronomy does not mention rules governing the wife of the slave. 263 John van Seters, “The Law of the Hebrew Slave,” Zeitschrift für die Alttestamentliche Wis- senschaft 108(4) (1996): 540; Anthony Phillips, “Some Aspects of Family Law in Pre-Exilic Israel,” Vestus Testamentum 23(3) (1973): 357. 264 Hezser, Jewish Slavery, 29, 30, citing Lev. 25:42. 265 Ibid. 266 Dandamaev, “Slavery in the Old Testament,” in David Noel Freedman, Anchor Bible Dic- tionary, 6: 63, citing Exod. 21:6; Deut. 15:16–17.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 72 Chapter 1 continue to accept the work of the slave.267 This was a primary source of slavery in ancient Israel.268 If a Hebrew father sold his daughter into slavery, she was not to be manumitted in the sabbatical year. It seems such a transaction might be entered into with the view that the daughter would eventually become the wife of the owner. The owner had no right to sell her to a foreigner but he was required to either take her as a concubine or marry her or give her in marriage to his son or otherwise maintain her. If he did not provide her with these opportunities, which expressly included the right to adequate food and clothing, she was entitled to her freedom.269 Abductions of freepersons for sale into slavery was a known practice but the penalty for kidnapping an Israelite was death.270 The story of Joseph is perhaps the most important account of slavery in the Hebrew Bible, although it is not actually about Hebrew slavery but rather it describes the regime of Egyptian slavery and the commerce and activities of slave traders that were extant at that time. The story of Moses and his heroic behavior in leading the Hebrews out of bondage in Egypt is of similar import. The enslavement of prisoners of war was another important source of slavery for the Israelites.271 As we shall see in an account used by ISIS to justify some of its behaviors, Deuteronomy provides that, in war, the Israelites, when conquering a city, were first obligated to make an offer of peace.272 If the inhabitants of the city accepted offer, this gave rise to an obligation to pay taxes and perform corvée labor.273 If the offer was declined, all the men of the city were to be put to the sword and the women and children were to be enslaved, as a form of war booty, with all moveable goods in the city also made available as plunder.274 Leviticus encourages the purchase of foreigners as slaves and, as I have noted, enslavement through this method was permanent and slaves were sold, inherited, pawned, and branded or marked like livestock.275 One could also be enslaved as punishment for crime.276 Dandamaev asserts that the Hebrew Bi- ble contains the “first appeals in world literature to treat slaves as human be-

267 Ibid. 268 Ibid. 269 Ibid., citing Exod. 21:7–11. 270 Ibid., citing Deut. 24:7; Exod. 21:16. 271 Ibid. 272 Ibid. 273 Ibid. 274 Ibid., citing Deut. 20:11–14. 275 Ibid., 64, citing Lev. 25:44–46. 276 Ibid., citing Gen. 43:18; 44:9–10, 17.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 73 ings for their own sake and not just in the interest of their masters.”277 This may be an overstatement, as various aspects of the Babylonian, Sasanian, and Ro- man laws also recognized the humanity of slaves, according them certain rights. There is no doubt, however, that the legislation in the Hebrew Bible significantly advanced the move in history toward a more humanitarian approach to slavery. This may be due, in large part, to the regulations governing the rights and obligations of Hebrew slaves. It seems, however, that the appearance and reach of many of the regulations requiring humane treatment ap- plied to all slaves, not just the Hebrews. Deuteronomy 23:15–16, for example, forbade the return of a fugitive slave to the master; Proverbs 30:10 protected a slave from slander; and Job 31:13 stipulates that the Prophet Job never rejected a well-founded appeal from a slave.278 There is very little evidence of what the practice was among the Jewish people so we must depend on these passages from the Hebrew Bible. The scholar Catherine Hezser’s Jewish Slavery in Antiquity purports to offer descriptions of Jewish life during the era of slavery but most of her account is of slavery during the time of Roman colonization. The biblical references will, on the other hand, stand us well when we consider the impact of the advent of Islam on slavery in the region as the Qurʾan, like the Hebrew Bible, is replete with regulation concerning the treatment of slaves and their relationship to free persons.

4.8 Slavery and Slave Trading in the Sasanian Empire It is said that Islamic civilization’s Sasanian inheritance “runs broad and deep.”279 This legacy is usually divided into four separate strands: imperial government; literature, mathematics, and science; religion and philosophy; and art and architecture.280 The Abbasid Caliphate took great advantage of Sasanid methods of government as it spread eastward to conquer the lands and peoples of eastern Iran and Transoxania in the ninth and tenth centuries CE. The Caliphate of Harun al-Rashid encouraged its denizens to study medicine and science and this practice borrowed heavily from the Sasanian tradition of medical educa- tion derived from its medical school at Jundaysabur in Khuzistan.281 Sasanian traders were commercially very successful and we know that, beginning in the third and fourth centuries CE, two hundred years prior to the advent of Islam, they established a very effective maritime trading network in the Persian Gulf

277 Ibid., 65. 278 Ibid. 279 Judith Lerner, “Sasanians, Islamic Traditions,” in Medieval Islamic Civilization: An Encyclo- pedia, ed. Joseph F. Meri (New York; London: Routledge, 2006), 2: 697. 280 Ibid. 281 Hodgson, Venture of Islam, 1: 298.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 74 Chapter 1 and the western Indian Ocean, also reaching into the Red Sea. At the same time they controlled much of the trade and commerce along the Silk Road— overland routes that brought great wealth to the Middle East from trading stations in Central and Eastern Asia. All of these commercial networks involved traffic in slaves. This is in addition to the slave trading conducted by the Sasa- nians around the Horn of Africa and along the coasts of Yemen. These historical antecedents make it important to recount the origins and salient features of the Sasanian Empire and its practice of slavery and slave trading, to the extent that they are known. In 323 BCE, Alexander the Great conquered the Achaemenid Empire, led by Darius III. Alexander died shortly thereafter, leaving a vast realm to be divided among his generals. Egypt fell under the suzerainty of the Ptolemaic divisions of Alexander’s Macedonian army, and the eastern realms—from Mesopotamia to the Indus River—were taken over by another series of emperors, the most important being Seleucus, a Greek general who took command of the region, including Babylon, Persia, and western India, beginning in 312 BCE. The new empire was thoroughly Hellenistic in character. This included the institution of slavery, practiced in the way we have described Greek slavery generally, although there were undoubtedly influences drawn from the Babylonian, Hebrew, Achaemenid, and Indian systems. Eventually the Seleucids, as they were called, clashed with the Parthians, an Iranian imperial entity that emerged beginning in 247 BCE, and lasting for over four hundred years to 224 CE. The Parthians were heirs of the Babylonian Achaemenids. Religion, drawn from Zoroastrian and Babylonian practices, was an important aspect of Parthian imperial culture. The reign of the Parthians ended when Ardashir I, a Farsian provincial ruler, led a revolt against the Parthians in 224 CE and established what has come to be known as the Sasanid Empire. The Sasanians took suzerainty of all the lands to the east of the Persian Gulf and Mesopotamia (as well as, during certain periods, Yemen), ruling that area until they were defeated by invading Muslim armies after the death of the Prophet Muhammad in the seventh century CE. The influences of the Sasanians on Islamic conceptions of law and government were as important as the Roman influences, if not more so. Items of evidence of Sasanian influences in government, literature, religion, philosophy, art, and architecture are very observable. Like the Nabotaeans, however, there is little documentation of the nature and practice of Sasanian slavery. Most of the historical work has focused on the Sasanian contributions to Islamic architecture, literature, science, and philosophy. The Sasanids likely employed the same methods for importation of slaves into the empire that we have seen in the other Middle Eastern entities I have discussed. These involved capture of prisoners of war, establishment of slave markets and commercial transport

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 75 networks, employment of “royal” and “temple” slaves in imperial buildings and lands, as well as procurement of slaves through kidnapping and piracy. One important source of knowledge is a Sasanian Pahlavi lawbook entitled Maday- an i hazar dadestan. This title has been translated as the “Book of a Thousand Legal Decisions” and it reads in many ways like the compilations of fatāwa (juristic legal opinions) in later Islamic legal collections. Some have compared the Maydayan to the Justinian law code. It is a valuable source of information on the rights and obligations of slaves in late Sasanian society as well as the rights, responsibilities, and status of women, particularly upper-class women, who had the right to inherit the family—or “hearthfire”—from their fathers.282 One should understand that in the old and middle Persian languages, the word for slave (“bandag,” or, literally “bound”) could be used to describe anyone who was subject to the sovereignty of the king.283 Nonetheless, the word was also used to describe chattel slaves. Persons living in the empire might enter into the enslaved status in a number of ways. Fathers could sell their children into slavery to satisfy a debt and adult free persons could also be enslaved, sometimes for a limited period of time, as security for a debt.284 Prisoners of war were regularly enslaved after capture and the Sasanian law permitted transfer of a slave, by sale, lease, or gift, in the same way that other ancient legal systems permitted such transfers.285 We also know that the Sasanians apparently transported captives (soldiers and civilians) back to the interior of the empire and far from any borders, in order to establish colonies.286 This seems to have been their regular practice, as shown by the transportation of the residents of An- tioch, captured by the Persian army, back to the center of the realm to establish a “new Antioch.”287 Similarly, the inhabitants of Theodosiopolis in Armenia met an identical fate and Khosrow threatened to impose the same end on the residents of Edessa.288 According to Rotman, this Sasanian policy remained the same through late antiquity, as shown by examination of the writings of a great number of historians.289 Prisoners were either massacred, transferred

282 Jenny Rose, Zoroastrianism: An Introduction (London: I.B. Taurus, 2011), 118. The descriptions in this paragraph are primarily drawn from M. Macuch, “Barda and Bardadari, ii, In the Sasanian Period” in Ehsan Yar-shater, ed., Encyclopaedia Iranica (London and New York: Routledge & Kegan Paul, 1989), 3:763, 3:764. 283 M. Macuch, “Barda and Bardadari, ii, In the Sasanian Period,” 3: 763, 764. 284 Ibid. 285 Ibid., 3: 765. 286 Yuval Rotman, Byzantine Slavery, 33. 287 Ibid. 288 Ibid. 289 Ibid., 33–4, citing Procopius, Agathias, Manander Protector, Eunapius, Olympidoros, Pris- cus, and Malchus.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 76 Chapter 1 back to the interior for purposes of colonization, or imprisoned.290 Wink has noted that extensive Sasanid colonies were established on the Arabian coast, and on the Malabar coast of India and in Sri Lanka.291 The Sasanian law had two curious provisions that were quite similar to provisions later found in the Islamic law. Firstly, a Zoroastrian slave could not be sold to an infidel, that is, someone not of the Zoroastrian religion.292 This rule ensured the slave’s right to freely practice his religion. If a slave converted to the Zoroastrian religion while owned by an infidel, he could leave his owner and become a “free citizen” after compensating the owner.293 This rule laid down the principle that Zoroastrian belief is inconsistent with slavery. Islamic law also eventually came to stipulate that no free Muslim could be lawfully enslaved, although conversion to the Islamic faith while enslaved, unlike Sasa- nian law and more like Christian law, did not require emancipation. Secondly, under at least the earlier iterations of Sasanian law, a child born of an enslaved mother and a free father inherited the father’s free status.294 This was identical to one of the cluster of rules under the rubric umm al-walad, announced by the Caliph295 ʿUmar ibn al-Khattab during the time right after the death of the

290 Ibid., 34. 291 Wink, Al-Hind, 1: 48. 292 Macuch, “Barda and Bardadari,” 3: 765. 293 Ibid. 294 Ibid., 764. 295 In chapters that will follow I will provide more detail concerning the juridical, historical, religious, and political significance of the office of the caliph in relationship to the histories of slavery and slave trading in the Muslim world but, since I have used the term several times, and will continue to use it, it is probably a good idea to define it. The word “caliph,” or khalīfa in Arabic, literally means “successor” and, in Islamic law, refers to the head of the Muslim community who assumes the temporal functions performed by the Prophet Muhammad when he was alive. These functions include, inter alia, the levying of taxes, regulation and supervision of markets, command of the military and the conduct of war, appointment of judges and other governmental officials, formulation of state policy in domestic and foreign affairs, and the like. See, generally, Khalīfa, in Encyclopaedia of Islam, New Edition, eds., E. Van Donzel, B. Lewis, Ch. Pellat, and C.E. Bosworth 4: 937. Pro- fessor A.K.S. Lambton observes: “As the temporal head of the community, whose internal organisation was secured by a common acceptance of and submission to the sharīʿa, the caliph was the symbol of the supremacy of the sharīʿa. He, like other believers, was subordinate to it and they owed him obedience only as its representative. So far as there was an element of contract in the relations between him and his followers this was to be found in the bayʿa [a citizen’s declaration of allegiance]. Termination of the contract was permitted only if a change took place in the status and condition of the caliph such as might cause prejudice to the rights of the community. The weakness of the position was that no tribunal was specified to decide upon his deposition. Ibid., 948 (definition of bayʿa inserted by the author).”

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Prophet. ʿUmar added several corollaries and the enactment of these rules had far-reaching consequences in the Islamic world but it appears that the central provision, declaring the freedom of the child born from the loins of a free father, had also been a Sasanian legal principle.

5 The Pre-Islamic Slave Trades in the Indian Ocean and along the Silk Road

As this book unfolds, you will learn that, by the mid-eighteenth century, a steady, lucrative, and robust trans-oceanic slave trade had developed between the East African coast and the Red Sea, the southern Arabian Peninsula, the Persian Gulf, and the western coast of India. This trade was largely conducted by Omani Arabs, based in Muscat and in Zanzibar, and was powered by the cyclical monsoons that dominate weather patterns in the western Indian Ocean.296 It also appears that an equally steady and lucrative trans-oceanic slave trade also flourished at that time in the eastern Indian Ocean, also taking advantage of trade winds, and involving the transport of slaves from the Indian Peninsula southeast to Banda Aceh, Penang, Malacca, Batavia (Jakarta), and other ports in the Malaysian Archipelago and between those ports and numerous other destinations, some as far away as Macau, Mauritius, and Madagas- car.297 These two great trans-oceanic slave trades form a great part of the geographical and historical backdrop for our consideration of the problems of slavery and slave trading in Islamic law. Modern historians have attributed the explosion of slave trading in the Indian Ocean world in the seventeenth,

The first four successors of the Prophet Muhammad are referred to by Sunni Muslims as the “Rightly Guided” Caliphs because they were said to have had a superior understanding of what was required of an Islamic leader by virtue of their close association with the Prophet Muhammad and their knowledge of his vision for the new Islamic government. ʿUmar ibn al-Khattab was the second of the “Rightly Guided” Caliphs. The caliphal concept gained considerably more substantive and historical significance during the halcyon days of the Abbasid Caliphate, based in Iraq, which functioned, in various incarnations, between 649 CE and 1258 CE and with great geopolitical impact between 750 CE and 950 CE. 296 Sheriff, Slaves, Spices and Ivory in Zanzibar, Chapt. 1. 297 Richard B. Allen, European Slave-Trading in the Indian Ocean, 1500–1850 (Athens, OH: Ohio University Press, 2015), 85–87; James Hoover Frey, “The Indian Ocean slave trade,” in A.J. Andrea, World History Encyclopedia (Santa Barbara, CA: ABC-CLIO, 2011); James Fran- cis Warren, The Sulu Zone, 1768–1898: The Dynamics of External Trade, Slavery and Ethnic- ity in the Transformation of a Southeast Asian Maritime State (Singapore: Singapore University Press, 1981); James Francis Warren, The Sulu Zone: The World Capitalist Econo- my and the Historical Imagination (Amsterdam: VU University Press, 1998).

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eighteenth, and nineteenth centuries to a “globalization” of the Indian Ocean economy that emerged with the aggressive intervention of the Western Euro- pean mercantile imperialists, beginning in the seventeenth century.298 The argument, simply put, is that the Western European interveners, bringing with them improved maritime technologies, coordinated communications, understandings of the region’s geography, and imperialist discipline, added a completely new dimension to the slave trading enterprise (and trading in other goods) in the Indian Ocean world. These improvements frequently centered upon maritime slave trading routes. In my view, the historical argument that sees early modern slave trading in the Indian Ocean as a new phenomenon, generated by a globalization of the ocean economy and led by Europeans, is just plain wrong. It appears that West- ern Europeans who came upon the scene in the eighteenth century simply appropriated slave trading links and routes that had long been in existence in the region when they arrived. The “globalized” Indian Ocean trade in fact has substantially earlier, even pre-Islamic, global roots. These roots extend back to at least 2500 BCE, suggesting that the so-called “globalization” of the Indian Ocean trading phenomena, including slave trading, was in reality a development that was built upon the activities of pre-Islamic Middle Eastern empires, which activities were in turn inherited, appropriated, and improved upon by the Muslim empires that followed them, and then, after that, they were again appropriated, exploited, and improved upon by Western European interveners. This long and continuous history of slave trading across the Indian Ocean, expanding through time as it did, shows the importance of that great body of water as a key player in the history of slavery and abolition in the Muslim world. Understanding the engrained and historic role of the oceanic slave trades is therefore a key to understanding why abolition in the Muslim world was so difficult. This section will chronicle the pre-Islamic beginnings of this long and continuous history, relying on such sources as are available. Although each of the sources, individually, is quite sparse in terms of information, the combination of all of them, taken collectively, shows quite conclusively that slave trading and the involuntary transportation of slaves across and around the Indian Ocean was an ancient and well-established aspect of Indian Ocean commerce long before the Western Europeans arrived. I begin this portion of the chronicle with the observation that there is no doubt that a vigorous commercial intercourse spread across the Indian Ocean from soon after the emergence of the first civilizations in the Middle East. The

298 See, e.g., Allen, European Slave Trading on the Indian Ocean; Alpers, East Africa and the Indian Ocean; Gwyn Campbell, ed., The Structure of Slavery in Indian Ocean Africa and Asia (London, UK and Portland OR: Frank Cass, 2004).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 79 history of geographic knowledge of the Indian Ocean and its relationship to trading networks is ancient. The East African expedition depicted on the walls of Queen Hatshepsut’s mortuary temple in Luxor, Egypt would have occurred in and about 1475 BC and it shows how the Egyptians sought incense, myrrh, animal hides, monkeys, other exotic animals, timber, and perhaps slaves from East Africa. Scholars have also shown that it is likely that the ancient Egyptians traded with boats coming from India and docking in ports in the Red Sea. The Book of Kings in the Bible refers to a Solomonic naval expedition to “Ophir” for gold.299 No one is sure of the location of the ancient city of “Ophir” but it was likely on the African shore of the Red Sea or perhaps as far south as Sofala on the East African coast. The ancient records of the Babylonians,300 the Egyptians,301 the Persians,302 the Greeks,303 and the Indians304 all show an extensive and ancient commerce across the Indian Ocean. Slave trading was a part of this commercial intercourse but it likely was not a major part of the trading enterprise until the Byzantines and the Sasanians began trading in the Indian Ocean in the first centuries of the Christian era. In Hellenistic and early Roman times, a number of geographers recorded their observations and made reports concerning conditions affecting trading and sailing in the Indian Ocean, the Red Sea, and the Persian Gulf. Among the most well-known of these works is the treatise on the Red Sea by the Alexan- drian Agatharchides, as well as the Geography of Strabo, completed no earlier than 23 CE, and the Natural History of Pliny the Elder, published in 77 CE. All of these geographies describe, albeit briefly, slave trading activities. Although these geographies are helpful, the most important of the early sources is probably the Periplus of the Erythrean Sea, an anonymously authored Greek-language mariner’s guidebook on the Indian Ocean and Red Sea. It was designed to alert mariners and shippers to the commercial advantages and pit- falls of calling at various ports in the region. In doing so, the author also provides evidence of slave trading activities in the East African, southern Arabian, and Indian coastal regions during the first century CE. The author reports:

299 I Kings 9:26–28. 300 Kuhrt, The Ancient Near East, 523–621. 301 Dunstan, The Ancient Near East, 129 (on the theory that “Punt” was also on the East Afri- can coast). Dunstan also argues that the Saite Revival in Egypt sent trading expeditions to East Africa and may have even circumnavigated the African continent. Ibid., 263. 302 Dandamaev and Lukonin, Ancient Iran, 152–177. 303 Herodotus, bk. iv, chpts. 42, 44 (Oxford, UK: Clarendon Press, 1949) (J. Enoch Powell, trans.). 304 Wink, Al-Hind, 1:45.

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“… Omana [likely a port on the southern coast of Iran or perhaps in the Persian Gulf, near modern day Oman] also takes in frankincense from Kanê and sends out to Arabia its local sewn boats, the kind called mada- rate. Both ports of trade export to Barygaza [on the west coast of India] and Arabia pearls in quantity but inferior to the Indian; purple cloth; native clothing; wine; dates in quantity; gold; slaves.”305

The Periplus, with some frequency, makes mention in other passages of a trade in slaves, especially females, who are described in one section as “beautiful girls for concubinage.”306 André Wink has pointed out that Darius “subdued the Indians” and made regular use of the Persian Gulf and that the Mesopotamians, Greeks and Romans, using the monsoons as the Arabs were to do later, regularly sailed to India and Sri Lanka and brought goods back.307 There was also regular transportation of Zanj,308 some held in slavery, across the ocean before the coming of the Europeans. M.N. Pearson, another well-regarded historian of the Indian Ocean, rightly points out that it is the oldest sea passage in the history of human beings.309 An integrated trade in the Red Sea can be traced back to ancient Egyptian times. This trade expanded, pushing southward and eastward. By the time of the advent of Islam, this trade was responsible for the multi directional carriage of a great variety of goods as well as scholars, merchants, and slaves to all parts of the ocean.310 The Sasanian Empire was instrumental in solidifying this aspect of the ocean trade.311 Pearson asserts that the first mention of African slaves appears in the Sasanian period in the early seventh century.312 Wink confirms that the Sasanids dominated trade in the Western Indian Ocean in the fifth and sixth centuries and consolidated control of the

305 Lionel Casson, trans., The Periplus Maris Erythraei: Text with Introduction, Translation and Commentary (Princeton: Princeton University Press, 1989), 73. 306 Ibid., 81. See also ibid., 55, 59, 69. 307 André Wink, Al-Hind, 1:43. 308 Zanj is a commonly heard word in the Arabic and Persian languages, of uncertain origin. It is generally said to mean “black person” or a person from the east coast of Africa. Hence the place-name Zanzibar was given to the island off the coast of East Africa and the word is generally translated as “land (or place) of the blacks.” In earlier parlance, the word Zanzibar was often used to describe the entire coast of East Africa, from Somalia to Mozambique. 309 M.N. Pearson, The Indian Ocean (New York: Routledge, 2003), 3. 310 Ibid., 62–112. 311 Valeria Fiorani Piacentini, ‘International Indian Ocean Routes and Gwadar Kuh Batil Set tlement in Makran,’ Nuova Rivista Storica 72, (May–August, 1988): 321–332. 312 Pearson, Indian Ocean, 85.

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Persian Gulf.313 Joseph E. Harris, another important historian of Afro-Asian relationships, surveying the literature, points out that, in addition to slaves being exported from Somalia to ancient Egypt and the presence of black soldiers in Mesopotamia, transportation of blacks in a slave trade across the ocean was likely a “constant factor” from and after the first century CE. This is confirmed by the large number of black slave soldiers seen in Gujarat and the Deccan in the Middle Ages and evidence that the Chinese sought slaves when their fleet arrived in Mogadishu in the twelfth century.314 George Fadlo Hourani’s Arab Seafaring in the Indian Ocean in Ancient and Early Medieval Times, first published in 1951 and republished with a new introduction, notes, and bibliography by John Carswell in 1995, also remains an in- valuable resource.315 A key inquiry involves determining whether the maritime technology in pre-Islamic times would have supported the movement of large numbers of human beings across the ocean. The western half of the Indian Ocean, “from Ceylon round to East Africa,” was a cultural unity and it is likely that ships hugging the shores made their way from one end of the littoral to the other.316 These ships could very well have carried large numbers of human beings and the presence of significant numbers of East Africans in India in pre- Islamic times tends to bear out that assumption. Hourani, citing a variety of very reliable sources, shows that all of the ships operating in the western Indi- an Ocean in pre-Islamic and early Islamic times were constructed of teak wood, imported from India, and were sewn together using the husks of coconut or other kinds of sturdy fiber.317 There was a great ship-building industry that developed in the Persian Gulf and it is clear that all of the ocean-going ships that were constructed used wood imported from India, as the cypress and coconut wood found in the region, and the small amounts of wood found on the desert, were greatly unsuitable.318 This practice also goes back to Baby- lonian, Achaemenid, and Sassanid times and is referred to by Theophrastus and in the Periplus.319 The ships were distinguishable by the triangular lateen

313 Wink, Al-Hind, 1:48. 314 Joseph E. Harris, The African Presence in Asia (Evanston: Northwestern University Press, 1971), 5, citing, at nn2 and 3, C. Martin Wilbur, Slavery in China During the Former Han Dynasty (Chicago: Field Museum of Natural History, 1943) [New York, 1967], 93; E. Bret schneider, On the Knowledge Possessed by the Ancient Chinese of the Arabs and the Arabian Colonies (London: Trubner & Co., 1871), 13–22. 315 George F. Hourani, Arab Seafaring in Indian Ocean in Ancient and Early Medieval Times, rev. and exp. edition (Princeton: Princeton University Press, 1995) ed. John Carswell. 316 Ibid., 88. 317 Hourani, Arab Seafaring, 88–97. 318 Ibid., 91. 319 Hourani, Arab Seafaring, 90.

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Figure 1.1 Indian Ocean Lateen sailboat. Drawing by Mujahid Khan sail, an ancient rig that was pioneered by the Arabs (and perhaps by the Per- sians as well) and seen on all Indian Ocean shipping as well as on the Nile River in a boat known as the felucca. These sails enabled ships to attain great speeds in the wind, although they were difficult to control in the open sea. This is likely why the first instances of Indian Ocean shipping between India, the Persian Gulf, the Red Sea, and East Africa, probably involved boats that hugged the coast. Strabo, the Greek geographer writing at about the beginning of the Chris- tian era, notes that Greeks from Egypt traded with ports on the Somali coast and from Adulis (a Sudanese port on the Red Sea), exporting “ivory hides, cinnamon. and slaves.”320 Similarly, Cosmas Indicopleutes, the Byzantine Egyp- tian monk, describes slaves being captured in Ethiopia and imported into Egypt via the Red Sea.321 He also describes “eastern traffic between Egypt, In- dia, China, and Ethiopia.”322 According to Cosmas, eunuchs were imported by

320 Hourani, Arab Seafaring, 29–30, citing Strabo, Book II, Ch. 5, Sec. 12. 321 Rotman, Byzantine Slavery, 57, citing, at n195, Indicopleutes’ Christian Topography. 322 Ibid., n195, citing sections 2:43–64 of the Christian Topography.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 83 the Byzantines from Mesopotamia, the Caucasus, and even India.323 There are also a number of references to a large community of Arab merchants in the medieval Chinese city of Canfu. In 846 CE the geographer Ibn Khordadhbih authored an account of a commercial trade that described the activities of al-Rādhāniyya, a group of Jewish merchants specializing in slaves and other luxury goods.324 The account describes travel by the Rādhāniyya along four “itineraries,” one of which included sea travel to ports on the Red Sea, including what is modern day Jed- dah, and to Sind, India, and China, with stops in Oman and in the ports of the Persian Gulf.325 They also used an overland “itinerary,” which took them along the ancient Silk Road.326 The existence and the activities of the Rādhāniyya is a matter of some current controversy but the authenticity of Ibn Khordadh- bih’s commercial travelogue is not in doubt and it clearly shows an effort by merchants to use the Indian Ocean as a thoroughfare for the transport of their goods. These goods included slaves, at least on some occasions and perhaps more frequently than has been acknowledged. It is a mystery as to why the shipbuilders did not use iron nails. Iron was available and that technology was in use in the Mediterranean. All of the ob- servers, from the earliest accounts compiled by Greek, Arab, and Persian geographers, through the later travel accounts of Marco Polo, Ibn Battuta, Ibn Jubayr, Masʿudi, Idrisi, Jordanus, and John of Montecorvino, all attest to the fact that the sewn ship was the only method used in the western Indian Ocean and that it was tried and true. These ships carried large caches of goods, as well as horses, cattle, and other livestock. It seems appropriate to conclude that such ships could also have carried significant numbers of human beings as cargo. Buzurg ibn Shahriyar, a Persian sea captain writing in the tenth century, observed that such ships contained cabins for traveling merchants and could carry up to 400 men. In one observation he remarked that one ship carried about 200 slaves.327 In that same passage he also describes a decision by an Omani sailor named Ismaʿilawayh, who, after being beached in Sofala, Mozam- bique and repairing his boat, decided to bring an African king and seven of his companions, together with the 200 slaves, back to Muscat to be sold in the

323 Ibid. 324 Rotman, Byzantine Slavery, 67–68 (citing and quoting Ch. Pellat, s.v. “al-Radhaniyya,” in Encyclopaedia of Islam, New Edition, eds., C.E. Bosworth, E. van Donzel, W.P. Heinrichs, and G. Lecomte (Leiden: E.J. Brill, 1995), 363–367, 363–4.). 325 Rotman, Byzantine Slavery, 67. 326 Ibid., 67–68. 327 Hourani, Arab Seafaring, 98n96, citing Buzurg ibn Shahriyar, al-Ram-Hurmuzi, Kitab ʿAja⁠ʾib al-Hind(in Le livre des merveilles de l’Inde, edited by P. van der Lith; translated to French by L.M. Devic., Leiden, 1883–1886).

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 84 Chapter 1 market. This would not have been possible without maritime capacity for the transport of sizeable numbers of human beings. The presence of cabins for merchants in these ships is confirmed in a number of medieval depictions of Indian Ocean shipping.328 In sum, the array of sources I have referenced, when viewed together, con- firm the existence of a regular and steady pre-Islamic commercial trade in slaves across the Indian Ocean. This trade cannot be compared, in terms of numbers of migrants and use of maritime technology, to the massive slave trades that rose and flourished in the eighteenth and nineteenth centuries. Nonetheless, we must conclude that human beings were viewed by mariners and merchants as a saleable maritime cargo, just as all the other commodities carried by boats along the shores and across the ocean would have been. All the commercial and geographical sources contain long lists of these commodities, e.g., timber, frankincense, myrrh, gold, cinnamon, tin, lead, copper, silver, pearls, ivory, shells, animals, skins, and foodstuffs. Each source, at the end of the list, also includes, more often than not, the word “slaves.” Historians have downplayed this undeniable fact. It should not be downplayed as it is the fac- tual precursor to what was to become one of the great instances of involuntary migration and suffering in human history.

5.1 The Silk Roads The Indian Ocean was not the only major thoroughfare for trade and for slave trading in pre-Islamic times. From the time of the Babylonians, pastoral no- mad groups coming from the north and the east had begun to traverse the area stretching from the well-watered littoral plain south of the Caspian Sea eastward through Khorasan in eastern Iran, the Bactria and Transoxiana, and then further east onto the arid plains of Central Asia and the steppes of Southwest- ern China. By the second millennium BCE, a pattern of settlement had developed that has continued to characterize the region down to modern times.329 These groups constructed heavily fortified sites on easily defended outcrop- pings along the communication route and these settlements evolved into towns and cities that became centers for trading, religious discourse, and other important cultural and economic activities.330 A “mounted horse steppe- nomadism” evolved and, in the first millennium BCE northern Iranians created a cohesive community along the communication route. The Scythians, a pas toral nomadic group, migrated into the region from Western Central Asia, be-

328 See, e.g., Hourani, Arab Seafaring, 99, Plate 7. 329 Philip L. Kohl, “Central Asia and the Caucasus in the Bronze Age,” in Sasson, Civilizations of the Ancient Near East, 2:1051, 1058. 330 Ibid.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access Slavery, Slave Trading And Law In Pre-islamic Middle East 85 ginning in about the fifth century BCE, and they established trading systems among the outposts that made them immensely wealthy.331 From that time on a “bustling land-based international commerce” developed and eventually the Central Asians, and immigrants from the Arab world, Persia, India, China, and many other locales, operated a highly successful commercial emporium along the trail that came to be known as the “Silk Road” or “Silk Roads” because of the trading in silk and other luxury goods along the routes. The mercantile reach of the emporium stretched as far as Europe, Northeast Africa, the Middle East, South Asia, and the Southeastern Asian islands. Slaves were considered to be a luxury commodity in those times and they would have been included in this commerce. A definite demand for Central Asian products emerged in the Med- iterranean world and the “Silk Road” economy became a system, supplying goods to peripheral communities and importing items from these communities in great quantities.332 Much of the groundwork for the development of this economic and commercial system occurred in pre-Islamic times. Central features of this system, even in pre-Islamic times, were its slave-holding cultures and slave trading, most often fostered by the fairly steady warfare engaged in by nomads along the routes.333 A small but brisk trade in human beings became part of the commercial milieu of the “Silk Road” and, when the Muslims took suzerainty of the region, they inherited this trade, just as they inherited the small but steady and regular trade that existed around the Indian Ocean littoral.

6 A Summary of the Pre-Islamic Legal Rules on Slavery

In the pre-Islamic Middle East, what, then, were the means of ingress into slavery and what was the character of the institution? The most common means of enslavement resulted from capture in warfare and the enslavement of family members of those captured in warfare. Virtually all of the systems I have described recognized this category of enslavement. All of these systems also recognized enslavement by birth, usually when either or both parents were enslaved. Although the rules varied from system to system, the pre-Islamic systems also generally recognized other means of enslavement

331 All of these details are taken from Christopher I. Beckwith, Empires of the Silk Road: A His- tory of Central Eurasia from the Bronze Age to the Present (Princeton: Princeton University Press, 2009), 59. 332 Ibid., 320–321. 333 Valerie Hansen, The Silk Road: A New History (New York: Oxford University Press, 2012), 45, 48, 183–186.

Bernard K. Freamon - 9789004398795 Downloaded from Brill.com09/29/2021 06:08:54PM via free access 86 Chapter 1 including self-sale, sale or gift of wives, children, or disabled persons by persons acting in loco parentis, commercial sale of one already enslaved, enslavement for religious purposes, debt bondage, including temporary debt bondage, enslavement as security for payment of a debt, enslavement as punishment for crime, state slavery (corvée labor as well as military enslavement, palace duties, and other elite functions), enslavement as recompense for civil wrong and to satisfy religious authorities after transgression, female concubinage, commercial prostitution of female slaves, certain kinds of enslavement following inheritance or adoption, and, particularly in the Roman law, enslavement of a foundling or other unwanted or abandoned orphan. It also appears that all of the major urban centers in the Middle East, including Mecca, contained public markets for buying and selling slaves, which were likely administered under local slave law and custom. This contributed to an active slave trading network for transporting slaves across the region, also protected by local law and custom. Consistent with this practice, Arab customary law recognized and condoned the institution of slavery as did Greek Law,334 Roman law,335 He- brew law,336 ancient Persian law,337 Byzantine Christian law,338 African customary law,339 Hindu law,340 and most of the other legal systems in the larger

334 See, generally, Andreau and Descat, Slave in Greece and Rome; Finley, Ancient Slavery and Modern Ideology. 335 See, generally, Westermann, Slave Systems; Buckland, Roman Law of Slavery. 336 See Exod. 21:2–11; Deut. 15:12–18; Lev. 25:47–54; see also Hezser, Jewish Slavery; Michael Grant, The History of Ancient Israel (London: Weidenfield and Nicolson, 1984), 182 (describing repatriation of Hebrews, with “six or seven thousand slaves” to Jerusalem). 337 See The Book of Esther in The Jerusalem Bible, ed. Alexander Jones (Garden City, NY: Dou- bleday, 1966), particularly Chapter 2. See also “Esther, The Book of” in The Oxford Compan- ion to the Bible, ed. Bruce M. Metzger and Michael D. Coogan (Oxford: Oxford University Press, 1993), 200–201; Dandamaev and Lukonin, Ancient Iran, 116–130. 338 See Westermann, Slave Systems, 129, 149–159; see also Buckland, Roman Law of Slavery; Rotman, Byzantine Slavery. 339 See Igor Kopytoff and Suzanne Miers, “African ‘Slavery’ as an Institution of Marginality”, in Slavery in Africa: Historical and Anthropological Perspectives, ed. Suzanne Miers and Igor Kopytoff (Madison: University of Wisconsin Press, 1977), 3, 7–14, 51–52 (describing “rights-in-persons” viewpoint in African slave systems and other customary law rules); Paul E. Lovejoy, Transformations in Slavery, 12–15 (discussing non-Islamic kinship and marriage rules); see also Shula Marks and Richard Rathbone, “The History of Family in Africa: Introduction,” Journal of African History 24, (1983): 145; D.A. Strickland, “Kingship and Slavery in African Thought: A Conceptual Analysis,” Comp. Stud. in Soc’y and Hist. 18, (1976): 371; Jack Goody, “Feudalism in Africa,” Journal of African History 4, (1963): 1. 340 Robert Lingat, The Classical Law of India, trans. J. Duncan and M. Derrett (Delhi: Oxford University Press, 1998), 102 (discussing slavery provisions of Code of Manu and other Hindu codes); Utsa Patnaik and Manjari Dingwaney, eds., Chains of Servitude: Bondage and Slavery in India (Madras: Sangam Books, 1985); Thomas Andrew Lumisden, Hindo

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Middle Eastern region.341 All these systems, particularly the Arab, African, He- brew, and Roman/Byzantine customary and formalized legal systems, formed the framework for an Islamic law of slavery that emerged with the rise of Islam. I will turn to that subject now.

Law, Principally with Reference to such Portions as Concern the Administration of Justice in the Kings Courts of India 1, 107–119 (1825); Chanana, Slavery in Ancient India. 341 Harold Motzki, Analysing Muslim Traditions: Studies in Legal, Exegetical and Maghazi Ha- dith (Leiden: Brill, 2010), 125. Motzi refers to an “obvious discontinuity” between the pre- Islamic and Islamic systems. Ibid. For a general background on pre-Islamic Arab customary law, see N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh Univer- sity Press, 1964), 9–10; W. Robertson Smith, Kinship and Marriage in Early Arabia, ed. S.A. Cook, new ed. with intro. by the author and I. Goldziher (Oosterhout, The Nether- lands: Anthropological Publications, 1966); Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence and Procedure (Cambridge, UK: Cambridge University Press, 2015), 53–60 (discussing pre-Islamic Arabian custom governing marriage and female war captives).

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