If a Muslim and a disbeliever, or a free person and a slave, both claim paternity of a foundling, how is precedence determined?
General Chapter
Al-Mughni
Book of Foundlings
Primary text
If a Muslim and a disbeliever, or a free person and a slave, both claim paternity, they are treated equally in the claim. This is the position of Al-Shafi'i. This is because if either of them were to claim alone, their claim would be valid; thus, when they contest, they are equal in the claim, like two free Muslims. The alleged harm of attributing the child to the slave or Dhimmi is not realized, as neither servitude nor disbelief is ruled solely on this basis. The analogy to custody is rejected because in custody, wealth and residence are prioritized, which is not done in claims of lineage.
Supporting text
Abu Hanifa holds that the Muslim takes precedence over the Dhimmi, and the free person takes precedence over the slave, because attributing the foundling to the slave or Dhimmi results in harm, making attribution to the free Muslim preferable, similar to disputes over custody.