Applications of the Slave-woman (Jāriya) Marriage in Pre-Islamic Arab Society and Analysis of Legal Arrangements Brought by Islam Cahiliye Arap Toplumunda Cariyenin Evliliği ile ilgili Uygulamalar ve İslam’ın Getirdiği Hukuki Düzenlemelerin İncelenmesi

The term of slave is generally defined ‘a person who is not free, dependent on the master, bought and sold legally, economically, and socially different from the free’. A female slave is called a concubine (jāriya). Slavery, thought to have existed throughout the history of humanity, exists in many civilizations such as Mesopotamia, Ancient Greece, and Rome, as well as in the pre-Islamic Arab society in the period of Jahiliyya. In those periods, abduction, crime, and economic reasons, especially captivity of war, were the main sources of slavery. The religion of Islam limited the source of slavery only to captives captured as a result of legitimate warfare. Concubines did not have most of the basic rights in the Pre-Islamic Arab society of Ignorance. All his rights were in the hands of his master. Concubines were not accepted as human beings, and they were bought and sold like goods. They were often used for prostitution to earn money for their owners in this way. It was rare for concubines to be freed. It was forbidden for a free and a slave to marry. The master of the slaves could be with any concubine he wanted. When a concubine had a child with her master, she was also considered a prisoner. If the master wanted, she would accept the child's lineage. The status of this ‘umm walad (mother of the child)’ would not change. Some concubines committed adultery with men. When they became pregnant by these men, the concubine would say that the child was from one of these men, or the qāif would annex the lineage of the child to one of the adulterous men. In the same way, the annexation of the lineage (istilhaq) was accepted when the man said that the child was his own. It was accepted as a kind of marriage in the Jahiliyya Arabs (bigā marriage). Islam has made some improvements regarding concubines' personal rights and legal status. In Islam, different practices have been envisaged that will allow the liberation of concubines encouraging marriage with concubines, the right to marry a free or slave was given. There are rules regarding the lineage of their children introduced. Prostitution was prohibited. It was stipulated that the concubine should marry in order to be with someone other than her master. The practice of annexing a child born as a result of prostitution to one of the adulterous men has been abolished, and the rule that the concubine belongs to her master has been introduced. Umm walad was given the right to be freed after his master died, and it was forbidden to sell. In this study, which we have done in order to better understand some of the provisions brought by Islam by examining the social situation at the time it came, the practices related to concubine and marriage among the Jahiliyya Arabs were examined. The data obtained by the documentation method were examined by comparison. As a result of our study, it has been determined that Islam has brought remedial regulations for enslaved women, most of whom are deprived of rights, used in prostitution, and whose marriage is accepted as embarrassing. Granting the right to marry concubines, prohibiting their use in prostitution, taking their descendants under protection, and making arrangements for them to gain their freedom can be considered in this context. The provisions and practices regarding concubines contained in the Qur'ān and the Sunnah have been elaborated by Islamic jurists over time. Conducting detailed studies on the main branches of Islamic law, such as family and criminal law related to concubines, will contribute to a better understanding of the provisions imposed by Islam.
 * This study is extracted from my master’s thesis titled "Concubine in Islamic Family Law" supervised by Prof. Dr. İbrahim Yılmaz (Nevşehir: Nevsehir Hacı Bektas Veli University, Social Sciences Institute Master’s Thesis, 2022).