There is now a worldwide consensus on the firm existence of a human right to freedom from slavery. This consensus gives rise to what was thought to be an irrefutable argument that the right to be free from slavery is a jurisprudential universal, with no competent legal system or government able to deny its existence or permit derogation from its tenets. This argument is now being tested by the ideologies, policies, and actions of Muslim insurgencies in Iraq, Syria, and Nigeria, each claiming that the enslavement of non-believing combatants and war captives and slave trading in such persons is permitted under Islamic law. This Article considers the implications of these claims for the future of Islamic law and for its relationship with the world’s legal systems, particularly international humanitarian law. It posits that the claims of these insurgencies, while glaringly out of step with modern views of chattel slavery, should be taken seriously and actually have a great deal of support in Islamic legal history. It argues that, despite the long presence of slavery and slave-trading in Islamic legal and imperial history, there is now a firm jurisprudential basis for declaring that slavery in Islam can and should be abolished, even under a government bound by the Sharīʿah. It asserts that Muslims and scholars of Islam must engage the Islamic State and Boko Haram in dialogue on this point. It argues that the moral questions raised by the continued specter of slavery in Islamic legal culture are profound and fundamentally more significant than any other questions facing the Muslim community at this time. The Article closes with a pessimistic assessment of the future of Islamic law in its relationship with international humanitarian law and in its ability to improve the lives of its subjects, should Muslims and scholars of Islam fail to achieve a community-wide understanding on the need for de jure abolition.
Bernard K. Freamon,
Isis, Boko Haram, and the Human Right to Freedom from Slavery Under Islamic Law,
39 Fordham Int'l L.J. 245
Available at: http://ir.lawnet.fordham.edu/ilj/vol39/iss2/2