1. In today’s world, no man or woman can be enslaved because the conditions for permissible enslavement—such as a legitimate Islamic war, the leader’s approval, and the absence of treaties prohibiting prisoner enslavement—are not met. Therefore, enslaving men and women is not permissible under current circumstances At the time of Prophet peace be upon him there were many causes of slavery, such as warfare, debt (where if the debtor could not pay off his debt, he became a slave), kidnapping and raids, and poverty and need. [see Islamqa fatwa 94840]
2. Slavery was already existing (which was cultural problem for e.g Yusaf Aleh salam was bought by Aziz e Misar as a slave 1000s of years ago before Prophet Muhammad Peace be upon him) and there were two rules for prisoners of war, first is to kill them or make them slaves and do whatever you want with them, you can even hit them.
3. Islam teaches us to free the slaves [Surah al-Balad verse 12,13] Prophet peace be upon him ordered to free the slaves.[Sahih Bukhari, Eclipses, Volume 2, Book 18, Number 163][Sahih Bukhari, Food, Meals, Volume 7, Book 65, Number 286]
4. But those people who were unable to go back because of the war between the nations, Islam set the rules for them, rather then putting them into the jail. The Caliph or the leader would give them into the private custody to save them, not to make things hard for them. As it can be seen in the hadeeth
Abu Huraira reported Allah’s Messenger (may peace be upon him) as saying: “When the slave of anyone amongst you prepares food for him and he serves him after having sat close to (and undergoing the hardship of) heat and smoke, he should make him (the slave) sit along with him and make him eat (along with him), and if the food seems to run short, then he should spare some portion for him (from his own share) – (another narrator). (Translation of Sahih Muslim, The Book of Oaths (Kitab Al-Aiman), Book 015, Number 4096)”
5. Slaves can be our leaders, Abu Dharr reported: My friend (the Holy Prophet) bade me to hear and obey (the ruler) even if he is a slave having his feet and arms cut off, and observe prayer at its prescribed time. (And further said): It you find people having observed the prayer, you in fact saved your prayer, otherwise (if you join with them) that would be a Nafl prayer for you. (Muslim, Book #004, Hadith #1355)
6. Islam reduced the tendency of making slaves, It was not abolished by Islam because the concept of prisoners of wars was existing. Islam just provided the rules to free them. Islam in gradual process tried to eliminate the slavery.
7. Regarding the concubine, As it is quoted above Islam encouraged to free the slave so it is better to free her and marry as did by Prophet Peace be upon him with Saffiyah and Raihana ra and encouraged in the hadith of Sahih al-Bukhari: Narrated Abu Burda’s father: Allah’s Apostle said “Three persons will have a double reward… 3. A master of a woman-slave who teaches her good manners and educates her in the best possible way (the religion) and manumits her and then marries her.” [Volume 1, Book 3, Number 97], But even if it is not possible then after their acceptance of Islam (as mentioned by Imam Nawawi in Sharah Sahih Muslim and Imam Shafiee) do sariyyah from the word sirr, which itself means marriage, Because there was a fear of adultery, if the man or woman is not married. Islam even encouraged to abolish this rule for e.g if you break your fast then the ransom is free the slave, if you want to do righteous deed then free the slave, if you break your qasam then free the slave etc. So Islam has eliminated it by gradual process.
8. It was not permissible to have sexual intercourse with the slave women who were not from the Ahul Kitab.
Those minority scholars who allowed it include Allama ibn al Qayyim and his teacher, Shaykh ul Islam ibn taymiyyah, and from earlier generations, Ata and Amr bin Dinar. According to Ibn Abdul Barr, this minority opinion doesn’t even count as ikhtilaf because it is abrogated and greatest of the fuqaha among the tabiyeen who knew Maghazi and 4 schools never paid attention to this opinion.
The opinion of Majority of the scholars which include Tabiyeen, and large number of scholars is the following.
Ibn Qudamah Hanbali said:
أن من حرم نكاح حرائرهم من المجوسيات ، وسائر الكوافر سوى أهل الكتاب ، لا يباح وطء الإماء منهن بملك اليمين . في قول أكثر أهل العلم ، منهم ; مرة الهمداني ، والزهري ، وسعيد بن جبير ، والأوزاعي ، والثوري ، وأبو حنيفة ، ومالك ، والشافعي . وقال ابن عبد البر : على هذا جماعة فقهاء الأمصار ، وجمهور العلماء ، وما خالفه فشذوذ لا يعد خلافا .
As for the people whose free women are impermissible for Muslims to marry of Magians and all other disbelievers apart from Christians and Jews, it is also impermissible to have sexual intercourse with the slave-women who are from among such people according to the majority of the scholars including Marrah al Hamdani, Zuhri, Saeed bin Jubayr, Awzai, Thawri, Abu Hanifa, Maalik, al Shafiee. Ibn ‘Abd Al-Barr said, “A group of renowned jurists around the (early) Islamic world (Fuqahaa’ Al-Amsaar) and the majority of scholars maintained this opinion. The opposing opinion is held only by few scholars and it is not even regarded as disagreement. [al Mughni Ibn Qudama]
The evidence of minority scholars.
Saheeh Muslim
Book 008, Number 3432:
Abu Sa’id al-Khudri (Allah her pleased with him) reported that at the Battle of Hunain Allah’s Messenger (may peace be upon him) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah’s Messenger (may peace be upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that:” And women already married, except those whom your right hands possess (iv. 24)” (i. e. they were lawful for them when their ‘Idda period came to an end).
Ibn Qudama mentioned said:
وقد أجبت عن حديث أبي سعيد بأجوبة ، منها أنه يحتمل أنهن أسلمن ، كذلك روي عن أحمد أنه سأله محمد بن الحكم قال : قلت لأبي عبد الله : هوازن أليس كانوا عبدة أوثان ؟ قال : لا أدري كانوا أسلموا أو لا . وقال ابن عبد البر : إباحة وطئهن منسوخة بقوله تعالى { : ولا تنكحوا المشركات حتى يؤمن } . ( 5399 )
The Hadeeth narrated by Abu Sa‘eed was met with response from the following statements: It is probable that these women had embraced Islam. It was reported about Imaam Ahmad that he was asked by Muhammad ibn Al-Hakam the following question: “From the Hawaazin tribe; were they not polytheists?” He answered that he did not know whether they had embraced Islam or not. Ibn ‘Abd Al-Barr wrote: “It should be noted that the permissibility of having intercourse with one’s polytheist captive was abrogated by the verse (that means): {And do not marry polytheistic women until they Believe.} [Quran 2:221]” [End of quote from Al-Mughni]
Al Qurtubi said:
وقال أبو عمر بن عبد البر: وقال الأُوزاعيّ: سألت الزُّهريّ عن الرجل يشتري المجوسيَّة أيطؤها؟ فقال: إذا شهدت أن لا إلۤه إلا الله وَطِئها. وعن يونس عن ٱبن شهاب قال: لا يحلّ له أن يطأها حتى تُسلِم. قال أبو عمر: قول ٱبن شهاب لا يحل له أن يطأها حتى تُسلِم هذا ـ وهو أعلم الناس بالمغازي والسِّيَرِ ـ دليلٌ على فساد قولِ مَن زعم أن سَبْيَ أوْطاس وُطِئن ولم يُسلِمْنَ. رُوي ذلك عن طائفة منهم عطاءٌ وعمرُو بن دينارٍ قالا: لا بأس بوطء المجوسية وهذا لم يلتفت إليه أحدٌ من الفقهاء بالأمصار. وقد جاء عن الحسن البصريّ ـ وهو ممن لم يكن غَزْوُه ولا غَزْوُ أهل ناحيتِه إلا الفُرس وما وراءهم من خُرَاسان، وليس منهم أحدٌ أهلَ كتاب ـ ما يُبيِّن لك كيف كانت السّيرة في نسائهم إذا سُيبن
Abu ‘Umar ibn ‘Abd al-Barr said:
Al-Awza‘i said: I asked al-Zuhri about a man who buys a Magian (Zoroastrian) woman—can he have intercourse with her? He replied: *If she testifies that there is no god but Allah, then he may have intercourse with her.
And Yunus reported from Ibn Shihab that he said: *It is not permissible for him to have intercourse with her until she embraces Islam.
Abu ‘Umar said: The statement of Ibn Shihab—*It is not permissible for him to have intercourse with her until she embraces Islam*—and he was the most knowledgeable of people regarding military expeditions and historical accounts, is proof against the invalidity of the opinion of those who claimed that the captives of Awṭās were taken as concubines without having embraced Islam. This was reported from a group, among them ‘Aṭā’ and ‘Amr ibn Dinar, who said: *There is no harm in having intercourse with a Magian woman.* But none of the jurists in the major cities paid attention to this opinion.
It has also been reported from al-Hasan al-Basri (which aligns with the opinion of majority)—and he was among those whose military campaigns, as well as those of the people of his region, were only against the Persians and the lands beyond them, such as Khurasan, none of whom were People of the Book—something that clarifies how the practice was regarding their women when they were taken captive.
(Tafsir al Qurtubi 2:21)
Al-Qurtubi may Allaah have mercy upon him wrote: “In classical Arabic, ‘nikaah’ refers to both the marriage contract and sexual intercourse. Since Allaah, The Exalted, uses the word ‘nikaah’ in the verse (that means): {And do not make nikaah with polytheistic women until they believe}, it is deemed unlawful for a Muslim man to marry a non-Muslim woman or to have intercourse with her by virtue of ownership.” [al Qurtubi under 2:221 End of quote, Islamweb]
This is also the fatwa of Jamiya Banuri of Deoband:
یہ بھی ملحوظ رہے کہ ہرباندی سے جماع کرنا جائز نہیں ہے، صرف اپنی مملوکہ باندی سے جماع جائز ہے، بشرط یہ کہ باندی مشرکہ یا دھریہ نہ ہو، اور کسی اور کے نکاح میں بھی نہ ہو، اگر کسی کی زرخرید باندی کسی کے نکاح میں ہو تو آقا کے لیے اس سے قربت کی اجازت نہیں ہے، اسی طرح اگر باندی بت پرست، آتش پرست یا دھریہ ہو تو اس سے بھی قربت کی اجازت نہیں ہے۔
“It should also be noted that having sexual relations with a harbiyyah (a woman from the territory of war) is not permissible. It is only permissible to have relations with one’s own slave woman, provided that she is not a polytheist or an atheist, and is not married to someone else.
If a slave woman owned by someone is married to another person, the owner is not allowed to have intimate relations with her. Similarly, if the slave woman is a polytheist (idolater), fire worshipper, or atheist, intimate relations with her are not permissible.” (End quote, فتوی نمبر : 144406101763)