Dr. Muhammad Benaish
Professor of Thought and Civilization
Oujda, Morocco
First: Practical Islamic applications to protect the lineage of the foundling
Among the examples of the application of guardianship in the Islamic nation to protect the foundling and lost child in general, we find what Saeed bin Mansour narrates in his Sunan on the authority of Sunan bin Jamila, who said: I found something wrapped up (wrapped up), so I brought it to Omar bin Al-Khattab, may God be pleased with him, and he said, “Arid” – that is, the one who is known to him – O Commander of the Faithful. He is a good man ..Omar said:So is heHe said: Yes. He said: Go with him.He is free, and you have his loyalty, and we have to support him…and in a narration: and we have to breastfeed him « .
On these and other texts, jurists build and deduce the rulings related to the foundling, his protection, and his upbringing, in terms of considering freedom, Islam, justice, or righteousness in the person responsible for the affairs of the foundling, as well as in adopting the penalty, or what is known as lowering the status of the child, and also in the conditions of custody and everything related to undertaking the upbringing and guidance of the child, so that We may find an example in the Great Blog: “I said: Have you seen Malik who used to say that a foundling is free?” He said: Yes, and his loyalty is to the Muslims. They will be freed from him and inherit from him. He said: And Malik said: Whoever spends on a foundling, if he spends it in a good deed, he has no right to return anything to him… Malik said. His loyalty is to all Muslims, and his loyalty is not to the one who picked him up…and his inheritance is to the Muslims. Ibn Wahb said: And Ali bin Abi Talib and Omar bin Abdul Aziz said: The foundling is free. Omar bin Abdul Aziz said: And his expenses are on the treasury. Also, his freedom is the reason for freedom. When his mother is a slave and becomes pregnant from her master…
Ibn Jazi says: “Gathering it is one of the obligatory duties of sufficiency. Whoever finds it and fears that he will perish if he leaves it is obliged to take it, but it is not permissible for him to leave it. And whoever takes it with the intention of giving it to the Sultan, there is no blame on him for returning it to the place where he took it if it is a place where he does not fear perdition due to the large number of people, and the foundling.” His allegiance is free to the Muslims, and the collector is not limited to him except by the appointment of the Imam…”
Second: Practical precautions and spatial consideration to protect the child’s lineage
Regarding practical precautions to preserve the foundling’s lineage from loss, we find in Abu Hamid al-Ghazali a delicate issue related to the place in which the foundling should settle after he is captured, as he says: “And he must preserve him in the place where he was captured. If he is moved from a country to a village or desert, it is not permissible due to the disparity in living conditions. From the desert to the country is permissible, but if it is transferred from one country to another or from tribe to tribe in the desert, it is not permissible in either case, because the appearance of his lineage in the place where he was taken is most likely.”
The last dimension in the text is very important to protect the child’s lineage from complete loss, while opening the door to hope for its recovery or reclaiming it, because the reality of unknown lineage does not mean the inevitability of its interruption, but objective measures must be taken to bring it closer to its recovery, through announcements and staying in the place close to its capture until the abandoner withdraws. Or the reasons for fear that led him to this procedure without his consent and voluntarily go away from him, and this gives priority to preserving the child’s lineage with the greatest possible means and reasons. So that the child may be picked up and someone claiming him comes close to the place where he was picked up, and then it may be his father or mother, or he may just be claiming affiliation with him, and the motive for bringing it up may also be to imitate some rumors and wishes that may be under the illusion of ensuring the child’s life for the one whose children are dying. At birth or shortly after, as in the blog: “I said, ‘What do you think if I pick up a foundling and a man comes and claims that it is his child? Is it true or not?’ He said: I have been told on the authority of Malik that he said: It is not true unless there is a reason for that, such as if a man with no child lives and hears something said. People say that if he throws away his child, he throws his child and picks it up and then comes to claim him. If something like this comes from him, it is known that the man had no living child, and he heard from him what he used to prove the truth of his statement. The foundling would join him, otherwise the foundling would not join him, and the one who claimed the foundling would not be believed except with evidence. Or in the same way as I mentioned to you or something similar… I said: What do you think if a woman claims a foundling that he is her child, will her statement be accepted? He said: I do not think that her statement should be accepted, and Ashhab said: I think her statement is acceptable, even if she also claims that he committed adultery, unless her lie is known.
The problem about moving the foundling from the place where he was picked up may be similar to the issue of adopting the penalty that often occurs when a mother or parents give up their child in emergency in hospitals or charitable organizations, and someone comes to adopt him and hand him over to him, then travels with him outside the country or to an unknown destination, and when The mother or parents return to their ease, and everyone’s filial and maternal instincts move to urge the child to seek, but they find no trace of him. Then there will be torment, pain, and constant remorse until death…!
Third: The religious dimension of national consideration regarding the child’s lineage
In addition to this, and in connection with the issue of place and preserving the lineage of the foundling, there is a broader and more comprehensive dimension, which is the national consideration in religious lineage, which is closely linked to the family lineage, in terms of the country in which it was found. Is it what is termed the land of Islam or the land of disbelief?
As for Dar al-Islam, there are two types:
As Ibn Qudamah says, “One of them is a house planned and established by the Muslims. This bastard is doomed to convert to Islam, even if there are people of the Dhimmah in it, in order to prevail over Islam and the apparent meaning of the house, and because Islam is superior and not superior to it.
Second: A house conquered by Muslims. If there is one Muslim in it, the bastard is ruled to be a Muslim, because it is possible that that Muslim will have a predominance of Islam. And if there is no Muslim in it, but rather all of its people are protected, it will be ruled a disbelief, because the predominance of the rule of Islam only comes with possibility.
As for the country of the infidels, they are divided into two types:
One of them is a country that belonged to the Muslims, but the infidels prevailed over it. This is like the section before it, if there was a single Muslim in it, he was also ruled to be a Muslim, because it is possible that there would be a believer in it who concealed his faith, unlike the one before it, for there is no need to conceal his faith in the land of Islam, even if it was a country of the Muslims and then the polytheists conquered it. Then the Muslims appeared and imposed tribute on its people. This is like the second part of the House of Islam.
The second: A house that was not originally for Muslims. If there is no Muslim in it, then its bastard is an infidel, because the house is theirs and its people are among them. And if there are Muslims in it, such as merchants and others, it is possible that his conversion to Islam will be ruled to prevail over the house, and more…
The predominance of Islam is the basis of the lineage and its protector, whether on the spiritual or family level. This predominance, as we have seen, remains objective and scientific, based on the spiritual and doctrinal impact of the child, given that his unification is through originality in the beginning and by extension later on, as we have previously shown.