Defining the Scope of Territoriality over Illegitimate Children in Light of the Objectives of Legitimacy

Abstract

This paper sheds light on determining guardianship over a foundling based on lineage, which is only an alternative due to the foundling's lack of the essential elements of true lineage, such as a marriage contract and semen. Therefore, the alternative lineage for a foundling, based on blood ties, can only be found through the legal interpretations and applications of jurists who deviated from the original principle of lineage. This deviation is justified by the jurists' rationales, such as the diversity of needs, the preservation of the child's rights, and the protection of a human life from perishing—a crucial objective of Islamic law. The preservation of the foundling's identity and rights is also based on the bonds of brotherhood and religious guardianship, which serve as a substitute for fatherhood. This creates a bond through which the foundling is entitled to numerous rights and is also bound by the terms of this contract. The research concludes that regional affiliation (nationality) is what fulfills this legitimate objective, making guardianship over a foundling a general and integrated guardianship, operating on multiple levels. Guardianship over a foundling is a dynamic process involving various institutions. Our relationship with this legitimacy begins within a Muslim society, whose manners are guided by Islam, whose character is defined by the Quran, and whose description of mercy is based on it.