Analysis of the Rule “al‑ayman fa‑l‑ayman” in Determining Custody Priorities After the Parents

Abstract

The issue of child custody following the death or disqualification of parents has long been a subject of attention in Islamic jurisprudence and family law. Custody priorities after the parents are determined based on the degree of consanguineal proximity (for example, the precedence of the maternal grandmother over the maternal grandfather, or the paternal aunt over the maternal aunt). However, when two or more relatives occupy the same degree of kinship and no other preference (such as the criterion of compassion or specific competence) can be applied between them, a conflict arises. This situation requires a final criterion for determining priority, in which the jurisprudential rule “al‑ayman fa‑l‑ayman” is proposed as a potential standard. The central question of this study is to determine the validity, scope of application, and operative mechanism of this rule in establishing the hierarchy of guardianship of a child after the parents. The aim of this research is to analyze the jurisprudential foundations of the rule “al‑ayman fa‑l‑ayman” and to examine the degree of its legitimacy and effectiveness as a decisive criterion for resolving conflicts arising from the equality of relatives of the same degree in matters of custody after the expiration of parental rights. The present study employs a descriptive‑analytical method with a jurisprudential and ijtihād‑based approach. The findings indicate that most custody rulings after the parents are formulated based on the “priority of compassion” and consanguineal closeness. The rule “al‑ayman fa‑l‑ayman” has no application in first‑degree priorities (such as between father and mother), but in cases of conflict between two paternal aunts or two maternal aunts who stand in complete equality, this rule is accepted by some jurists as a secondary and precautionary criterion for eliminating the conflict, technically shifting the preference toward the right‑hand side of the genealogical line. Nonetheless, this precedence is merely technical, and jurists who require additional criteria such as superior knowledge or reliability in upbringing may accord it a lower level of authority.