Ayatollah Makarem Shirazi
In the name of Allah, the Compassionate, the Merciful
Hajj as a will
The discussion was about the first ruling in regards to hajj being in a will. We reached the fourth section which. Here the deceased willed for a hajj to be performed on his behalf and we do not know whether this hajj is obligatory, taken from the total estate, or whether it is a recommended hajj, taken from the third of the estate.
This issue has not been mentioned much and the author of ‘Arwah is one of the people who discussed the issue in detail.
This section has three cases:
First case: we state that this means that it is an obligatory hajj meaning that the hajj that the deceased willed was an obligatory hajj and the price of it must be taken from the total estate.
The author of ‘Awrah and others believe that a person who lives far away from Mecca usually does not will a recommended hajj. If the majority of the time when one makes a will and when they mention hajj they mean an obligatory hajj then we could use that as a proof for the hajj being obligatory. The will of such people would mean an obligatory hajj.
Muhaqiq Thani criticizes this understanding while commentating on ‘Arwah. He states: “Sometimes people make a will for a precautionary hajj meaning that they performed their hajj, but per precaution, they make a will for another hajj to be performed on their behalf (of course they did not state that this was a precautionary hajj or else it would be outside of the scope of the discussion). This case is not something abnormal and that is why we cannot consider that the hajj definitely means an obligatory hajj.
His words bring about certainty and take away the notion that this hajj definitely points to an obligatory hajj.
Second case: This is when the hajj has a previous state meaning that at one time during his lifetime we know that hajj became obligatory on him and he did not perform it, but we doubt if he performed it later on or not.
Point: This istishab concerns a doubt about the subject, not the ruling because the principle of this ruling that if the hajj is obligatory the price of it is taken from the total estate and if the hajj is recommended the price of it is taken from the third of the estate. But, we doubt about the subject – whether the hajj that the deceased has to perform is obligatory or recommended.
There are two problems in this istishab:
One: in istishab the doubt of the person making the will is a condition not the person carrying out the will. We do not know whether the person who made the will had a doubt for us to use istishab or not because the action is in regards to the person who made the will – therefore we cannot implement istishab.
Answer: It is clear that the doubt is about the duty of the person carrying out the will not the duty of the person who made the will because the doubt is about whether or not the person carrying out the will has to take the price of this hajj from the total estate or from the third of the estate. The person who made the will passed away and does not have any duty.
Two: The principle of considering the actions of a Muslim as correct precedes istishab meaning that one does not know if the deceased sinned and did not perform his hajj. In this case we must consider his action to be correct and say that he was a believer and insha’Allah he performed his hajj not sinning.
In other words, if we do not consider the actions of a Muslim correct and we implement istishab we will be faced with a problem because after the death of any Muslim we doubt whether he paid his religious taxes or not and we doubt whether or not he paid his debts.
It must be observed that considering a Muslim’s actions as correct is not only in matters of his actions meaning that the principle is not only implemented when a Muslim performs an action, rather it is in regards to his duties. For instance, we are invited as someone’s guest and we do not know whether or not he paid his religious dues for us to be able to eat his food. Here, we implement the principle that a Muslim’s actions are considered correct and his food becomes permissible for us to eat.
In addition to this the principle of what is in a Muslim’s hands is his property states that the property that was in his hands at the time of his death was his. This means that religious dues were not mixed in with it. The principle of istishab states that if a time existed that you knew that he did not pay his religious dues than now you can say that he did not pay them, but the mentioned principle precedes istishab.
In short, it does not seem in my view that istishab can be implemented here.
Third case: The hajj does not have a previous state and does not denote obligation per se. Only, the will of the deceased is in our hands and he states that a hajj must be performed on his behalf.
This issue is included in the doubts over a specific instance. This means that we have a universal which is that it is obligatory to act in accordance to the will and we have an exception that recommended actions are taken from the third of the estate. We doubt whether this instance falls under the universal or the specific.
In the principles of jurisprudence it is mentioned that it is not permissible to act in accordance to the universal while in doubt about whether it falls under the specific or not. For instance, if it is stated that we must honor the scholars and that we must not honor the corrupt scholars, then if we doubt whether or not Zayd, who is a scholar, is corrupt or not. In this case we cannot act in accordance to the universal and we cannot act in accordance to the specific. In this case the principle of bara’at is implemented in regards to the obligation of honoring Zayd negating the obligation.
In the case that we are discussing, we must find the amount that is certain and state that the universal principle is: “Whatever a deceased leaves is for his inheritors, except a third.” The amount that is certain is that if the deceased leaves a will it cannot surpass a third of his estate.
Therefore, we state that in the fourth section the price of the hajj must be taken from the third of the estate.
