The Best Interests of the Child in Pre-modern Islamic Juristic Discourse and Practice

This Article examines an Islamic legal equivalent of the Euro-American concept of the "best interests of the child," a legal principle underpinning several international conventions. It presents various concepts and arguments made by pre-modern Muslim Sunni jurists in their discussions of legal rules regarding child custody, guardianship, maintenance, and travel with the ward. The Article presents four over-arching lines of investigation. The first deals with explicit discussions of whether custody and guardianship were rights of the custodian I guardian or the ward. The second seeks to comprehend juristic assumptions about whose rights took priority in the event of conflict between the rights of the ward and those of the custodian or guardian. The third deals with party autonomy, and the fourth with actual Ottoman court practice; the latter should help us transcend the discussions of jurists and venture onto the level of the discretion possessed by the judge in managing the conflicting needs and rights of wards, custodians, and guardians.