Al-Thawri, Al-Shafi'i, Ishaq, the proponents of opinion (Ashab al-Ra'y), and those who followed them. Al-Nakha'i said: If one finds him for the sake of reward (hasba), he is free, but if he intended to enslave him, he may do so. This is a position in which he deviated from the Caliphs and scholars, and it is invalid according to legal reasoning (nazar); for the fundamental principle regarding human beings is freedom. Indeed, Allah Almighty created Adam and his descendants as free, while slavery is an incidental status. Since that incidental status is unknown, he is governed by the fundamental principle.

Section: The foundling must either be discovered in the Abode of Islam (Dar al-Islam) or the Abode of Disbelief (Dar al-Kufr). As for the Abode of Islam, there are two types: First, a land established by Muslims, such as Baghdad, Basra, and Kufa; the foundling in such a place is ruled to be a Muslim, even if there are dhimmis (protected non-Muslims) therein, due to the predominance of Islam and the external appearance of the land, and because Islam prevails and is not prevailed over. Second, a land conquered by Muslims, such as the cities of the Levant; if there is a single Muslim in it, the foundling is ruled to be a Muslim, for it is possible he belongs to that Muslim, giving precedence to Islam. If there is no Muslim in it, but all its inhabitants are dhimmis, he is ruled to be a disbeliever, for the precedence of the ruling of Islam only applies when there is a possibility [of belonging to a Muslim]. As for the land of the disbelievers, there are also two types: First, a land that was once held by Muslims but the disbelievers overcame it, such as the coastal regions. This is like the preceding category: if there is a single Muslim in it, the foundling is ruled to be a Muslim; if there is no Muslim in it, he is a disbeliever. The Qadi said: He is also ruled to be a Muslim, because it is possible there is a believer there who is concealing his faith, unlike the previous case, for there is no need to conceal faith in the Abode of Islam. If he is in a land that was held by Muslims, then the polytheists overcame it, then the Muslims regained it and permitted its inhabitants to remain subject to the jizya, this is like the second category of the Abode of Islam. Second, a land that was never held by Muslims, such as the lands of India and Rome; if there are no Muslims in it, the foundling is a disbeliever, because the land belongs to them and its people are of them. If there are Muslims in it, such as merchants and others, it is possible