Foundling (laqit), fiqh rulings

Laqit, in lexicon, is a child found thrown on the roads whose father and mother are unknown; the Hanafis define it as a living born child abandoned by his people from fear of poverty or to flee suspicion; the Malikis as a human child whose father and manumission are not known; the Shafi'is as any lost child without a guardian; the Hanbalis as a non-discerning child whose descent and status are unknown. A found thing (luqatah) is wider, since it covers what is not human ^{1 2}.

Picking up an abandoned child is a communal duty for the Malikis, Shafi'is and Hanbalis, becoming an individual duty if no one else will; the Hanafis deem it recommended, on Ali's saying that he would rather have taken charge of such a child than much else ².

The Hanbalis recommend witnesses at the finding, the Shafi'is require it in the sounder view, and the Malikis advise it where time may be long ^{2 3}. The finder has the first right to keep the child, since he gave him life, and the one who first takes what none has taken is first; the child is taken from the finder if a condition fails: if he is a child, insane, under restraint for folly, a sinner, a slave without his master's leave, or a non-Muslim with a child judged a Muslim ^{3 4}. The Hanafis do not require Islam or freedom ⁴.

The Shafi'is distinguish a stranger from a resident: the stranger may take the child to his own land if he is trusted and his trustworthiness is tested, on conditions of safe roads and communication; he may not take him to the desert ⁵. The Hanbalis distinguish moving with the child to settle from travel, and the person of known probity from the unknown ^{5 6}. Al-Ramli states the rule: the finder may move the child to a place like his own or higher, not lower, on the conditions of safety ⁵.

The foundling is free in appearance, because the root of the sons of Adam is freedom and slavery is an accident; Umar and Ali held this, and so did Umar ibn Abd al-Aziz, al-Sha'bi, al-Thawri and Ishaq ^{6 7}.

The Shafi'is and Hanbalis look at the land where he is found: in a land of Islam he is a Muslim if a Muslim there could be his father; in a land of unbelief with no Muslim he is an unbeliever ^{7 8}. The Hanafis take the place of finding, and where a Muslim finds him in a Muslim city he is a Muslim, and a dhimmi who finds him in a church is a dhimmi; the Malikis follow the land ^{8 9}.

If one man claims him, a free Muslim is accepted where a valid acknowledgment is possible, on the view of the Shafi'is and Hanbalis, since acknowledgment benefits the child; the Hanafis accept it by preference, and by analogy only with proof. A dhimmi claimant gives him descent but not religion; a slave claimant gives descent but not slavery ^{9 10}. The Malikis require proof or a sign ¹⁰.

When two claim the child and neither has proof, he is put to the physiognomist, and attached to whom the physiognomist names, on the report of Aisha about Mujazziz; if the physiognomist names both, the Shafi'is hold him unattached until puberty, when he may choose; the Hanbalis attach him to both, who inherit as one father ^{10 11}. Ahmad allowed attachment to more than two; al-Qadi to three ¹¹.

If a woman with a husband claims him, her claim is not accepted without proof, since it imposes descent on another; if she has no husband, the Shafi'is in the sounder view require proof ¹². If two women claim him, the one with proof is preferred; with two proofs, the Hanafis make him their son, Abu Yusuf makes him no one's, and the Shafi'is put him to the physiognomist ^{12 13}.

His maintenance is from his own property if he has any; otherwise from the treasury, on Umar's words in the report of Abu Jamila: he is free, and his patronage is yours, and his upkeep is on us, since the treasury inherits from him ^{13 14}. If the treasury cannot pay, the Hanafis and Malikis require the finder to pay, the Shafi'is have the imam borrow from the Muslims, and the Hanbalis put it on those who know his case; the finder may claim back what he spent if the judge ordered it ^{14 15}.

If the foundling commits a crime borne by the kin, as in error, the fine falls on the treasury; a deliberate crime is dealt with as for others. If he is killed by mistake the blood-money is the treasury's, if he has no heir; if killed on purpose the ruler is his guardian, on the hadith that the ruler is guardian of one with no guardian; Abu Yusuf says the blood-money is due from his property and no retaliation ^{15 16}.