What are the building blocks that suggest concubinage was legal?
The Quran has verses on the subject. They refer to the life example of Prophet Muhammad (PBUH) to see what he did or is reported to have done, and what he's reported to have said, or what was happening in his lifetime, and he acquiesced in it, he did not object to it. This becomes a precedent for Islamic law. They look at the practice of the companions of Prophet Muhammad (PBUH). They will take that as tacitly approved lifestyle that is part of the Islamic ethos.
They would go to subsequent generations, the followers of the Companions, or the followers of the followers. Maybe they will go to scholars in the Middle Ages who were commentators on the Quran and explicators of the Hadith, the reported sayings, actions, and what the Prophet Muhammad (PBUH) acquiesced. It's a whole conglomerate of sources, and they're not carefully stratified. When someone says, this is Islamic law, one can't be sure where exactly they got it from. Is it a verse of the Quran? Is it something Prophet Muhammad (PBUH) said? Is it something that he tacitly approved, or it is assumed that he approved? It is necessary if one is going to revisit this or any other question in Islamic law, that one stratifies the sources if one is saying Islam says so, where does it come from? Is it the Quran? Is it the Prophet Muhammad (PBUH)? Is it one of the scholars of the Middle Ages? Who?
We have the Quran and the Hadith available to us, that we can parse through. The Quran is a fixed text approximately having 6,236 verses, or a different number of verses, depending on how one truncates the verses to number them. Of the two covers, one has the same content. Some variant readings, one has the same message brought out in all these readings. With the Quran, it's a simpler task. With the Hadith, we have a more gigantic task. First, if something is reported that the Prophet Muhammad (PBUH) said, “How does one know that he actually said it?” Since the person who wrote the books that one has them. Currently, may have lived in the third century of Islam or previously. Maybe if one was lucky, one would be dealing with a second-century individual, like Imam Malik ibn Anas.
However, in the second century, we're still dealing with the century after Prophet Muhammad (PBUH). If one tries to remember something that happened a hundred years ago, because one hasn’t lived that long. However, one would get the information from informants. However, even those informants may be trying to tell us about something that they witnessed or heard approximately 40 years ago.
How do people remember all this information? One can assume that after Prophet Muhammad (PBUH) passed away, there were interested in his teachings to the extent that they went around, asked others, and found out this information. They tried to categorize this information into various topics, and they memorized the snippets of the report. Then, they passed that from memory to the next generation and then to the next generation until all this information came to be written in the books as we have access to them currently. Some of them may have had notes.
Some German scholars like Gregor Schoeler and others have posited that when Hadith narrators were teaching their students, they didn't just simply work from memory alone, but they would have had some notes, even in some rudimentary form. Based on the notes, they're giving their lectures. However, those notes are gone, unless some of the notes were incorporated into the later writings. However, we do not have any trace. Everything in the written works that we have now give the impression that these were verbally communicated, orally, from one generation to the other.
Now, when one is dealing with this kind of oral transmission, in the case of the Quran, one doesn’t have any doubt about the overall content, because all the readings are basically giving us the same message.
In the case of the Hadith, we have a lot of conflicting reports. It looks like some people remembered things one way, some people remember things the other way, and later scholarship tries to put them together. However, one would expect that the early generations who were transmitting this information would have known such a scenario, and when they are giving us only half of the information and leaving the other half for somebody else to narrate, they would have put them all together right from the very earlier generations, and then they would put it all together and give us that the amalgamation from the very start. However, they didn't give us the amalgamation, and that obviously means that some knew one thing, and some knew the contrary. We must sift through all this information to know what is sound, what is not, and what really happened in the time of the Prophet Muhammad (PBUH).
People were practicing Prophet Muhammad’s (PBUH) example. Does one think that one has a greater sort of understanding of what happened because people were practicing as they went and linking it to the prophetic sayings?
To a certain extent. However, this is widely acknowledged already. There are many popular preachers out there, especially when it comes to the present topic at hand, who are basically working on the same assumption. However, starting with that working assumption, let's look at the flip side of that and look at what might challenge that basic assumption. For a long time, orientalist scholars have been looking at the sources of Islam, and they're looking at how Islamic law has been formulated and what are the various trends that operated in history. They don't make assumptions. Rather, they just go with actual and hard facts. If there's a saying of Prophet Muhammad (PBUH) reported, they're not going to read more into it. They want to see what it says, which is slightly different from the way in which Muslim scholarship has progressed. Muslim scholarship has progressed with many assumptions that are built into things.
They take a connected approach. But more than this, what the orientalist scholars have pointed out is that there may be something mentioned in the Quran, and the Muslim scholars read more into it from their background, from their context, from their social milieu. They imagine eventually all of that to be what the Quran is saying. Sometimes, the Quran leaves something unmentioned, and later scholarship tries to fill in the blanks. This is what is known in Arabic as, “Specifying that which was obscure.” One must distinguish between what the Quran says and what later scholarship said that it meant because they could have assumed.
When it comes to the Hadith narratives regarding what Prophet Muhammad (PBUH) said, did, and acquiesced in, there could have been a lot of things pertaining to the culture and social milieu of the time. Just thinking that Prophet Muhammad (PBUH) witnessed something, but he didn't object to it. That is an assumption about the action of Prophet Muhammad (PBUH). He had the responsibility to correct something. However, maybe it's in God's wisdom, directing Prophet Muhammad (PBUH) and guiding him to overlook certain things which would be wrong in modern times. There's not much one can do about it, and one has to pick his or her battles.
Is one dealing with concubinage? Is it one of those things that Prophet Muhammad (PBUH) was guided by God to leave alone? It is reported that he had a concubine. We need to revisit those reports and see if there is a contrary report. For example, he married a supposed concubine.
This needs to be revisited. One needs to go back to our sources and analyze the Quran first, in a stratified approach, without mixing it with anything else, letting something else overshadow what the Quran says. Analyze the Quran, pure and simple, and observe the life example of Prophet Muhammad (PBUH) to see if he really had a concubine, and what did he really say about the practice? Where it came from that it is so commonly accepted among Muslim scholars, some even to this day, that just by merely owning a woman as a slave girl, the man would have the automatic right to go to bed with her.