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Guide to writing an Islamic Will

Guide to writing an Islamic Will

Publisher: The Islamic Education Board of the World Federation of Khoja Shia Ithna-Asheri Muslim Communities
English

This book is corrected and edited by Al-Hassanain (p) Institue for Islamic Heritage and Thought

Guide to writing an Islamic Will

The following booklet has been published by:

The Federation of Khoja Shia Ithna Asheri Jamaat of Africa

PO Box 3739 - 00506

Nairobi, Kenya

Tel: (254 2) 651044, 651046

Fax: (254 2) 651048

Email: federation@saamnet.com

http://www.africafederation.org

April 2003, Nairobi, Kenya

Table of Contents

Introductory note 4

Making an Islamic Will 5

1. Importance of Making an Islamic Will 5

2. The One-Third Option. 7

3. What is an "Estate "? 9

4. Who can inherit? 10

5. Basic Shares of the Most Common Heirs 12

(a) Will a female child gets half of a male child's share? 12

(b) Wife's Share: 12

6. Wife’s Share 13

7. Executor or Executrix. 14

8. Guardian of Children. 16

9. Updating your Will 17

10. Some Legal Matters 18

Glossary. 19

Sample of an Islamic Will 20

Codicils I, II and III are part of this Will. 24

Codicil I 24

List of all my Property/Assets 24

Codicil II 25

List of Debts and Property of other to whom I have to pay/return. 25

Codicil III 26

List of Debts and Property that belong to me and I have to collect 26

Notes 28

Introductory note

It is highly recommended as perceived from the sayings of the Holy Prophet (S.A.W.) to write a Will.

To avoid the common pitfalls and prevalent problems when persons die instate, we have taken this initiative to prepare this booklet. It contains guidelines on making an Islamic Will as well as a sample Will. If you fill this tailor made Will it would become a legal and binding document.

The Africa Federation embarked on this task of preparing the guidelines and a sample will from which the members of the community can benefit. The following booklet was compiled from various sources and edited to meet the present needs. It is by no means a complete document and only serves as a guideline to make a Will that is both Islamically and legally acceptable. In short it explains certain aspects to be considered when making a Will and elaborates the parts of an Islamic Will and how to make one.

We would like to acknowledge the following sources where we extracted information from: GCG booklet on how to make a Will, Sayyid Muhammad Rizvi’s Making an Islamic Will (1994) and the World Federation Sample Will.

We would like to add that there may be assets you own or debts you owe, which nobody knows about. If you have them listed in this secret document to be opened after your demise, at least the assets will not go to waste and your debts will be cleared.

Many orphans and widows have had to endure hardships and resort to legal wrangles lasting a long time until the estate of their deceased is sorted. If the Will clearly stipulates all your wishes then there would no room for any infighting.

You have the choice of using one third of your estate as per your wishes and do not miss on this chance to earn salvation for the hereafter by using this option to do the best charity. Their might be some activities you have wished to undertake all along, this is the chance to get them fulfilled by allocating valuable resources for it to become a reality.

We strongly believe you have benefited and been a proud member of our community. Now it is the turn of the community to gain from you out of the one third. Perhaps you could name your local Jamaat or Regional Federation or a charity of the community as a beneficiary; and leave behind a legacy from which many will benefit perpetually and you shall be remembered with fond memories and be an example to emulate for others.

We humbly suggest that you give this document the seriousness it deserves and do not put your Will on hold any further. Please read it carefully and fill it today. No one knows when death comes.

With Salaams and Duas,

Zulfikar H Khimji

April 2003

Making an Islamic Will

1. Importance of Making an Islamic Will

The timing of death is uncertain, but death itself is certain. Most people believe that their possessions will automatically pass on to their immediate spouse/children/family with no complications and everyone will receive what the deceased wanted them to. The fact is, unless you have made a Will, there is no guarantee that this is always the case. Yet, most people die without making one. Even if you have no family, it is important that you make a Will so that what you own will pass to whomever you wish. You will no doubt want to be sure that when you die, your property and affairs be dealt with in accordance with your wishes and in an efficient manner.

If you die without making a Will, the government appoints an executor who will divide the estate among the heirs, as he/she seems fit. This could mean that some of your dependants may be deprived of essential financial security and possessions of particular sentimental value. The pay of the executor for this job will come out of your estate, and the government bureaucracy takes its time in getting things done.

Secondly, from the Shariah point of view, your heirs may get more or less than the shares specified for them in Islam. By not writing a Will, you are leaving the door open for a non-Islamic authority to distribute your estate according to its own views. So not having a Will is costly as well as problematic from both the State and the Islamic points of view.

If you have no living relatives and have not made a Will leaving your estate, say to a friend, a favourite charity or other organization, then the State could receive everything on your death.

By making a Will, you can be sure that your estate is passed to the named beneficiary/ies in the most tax-efficient way. If the country you live in imposes inheritance tax, the may also take positive steps now to limit your estate's liability to inheritance tax by making gifts, taking out life assurance cover or by setting up a trust, which makes specific provision for your family. To help achieve this, it is important that you should make a Will and, having written it, check it regularly to make sure that it always is still up to date. Times change, families grow and yesterday's Will may not be right for today.

If any of the following apply to you, it may be advisable to seek specialist advice when writing your Will:

• If you live, or own property or assets anywhere in the world.

• If you own a business.

• If you have previously been married and/or have children from a previous marriage or relationship.

Our Holy Prophet Mohamed (S.A.W.) said:

“It is not proper for a Muslim to pass two nights except that his/her (last) Will and Testament is near his/her pillow.”

“One who goes from this world after making a good Will dies the death of a martyr.”

“A person who without making a Will, dies the death of a pagan.”

Although according to Islamic law a Will need not necessarily be in writing or in any particular form of verbal declaration to constitute a WASIYYAT, the present day world requirements and laws of the land makes it obligatory upon a person to prepare a Will inwriting to ensure speedy disposal of wealth, to avoid unforeseen hardships to the family members and to alleviate unnecessary problems for the administrators.

If a Will is not made in writing, then:

The foremost problem arises as to who will administer and distribute the estate and usually the nearest relative or friend takes over.

The administrators (Executors, Trustees) of deceased's estate cannot easily obtain PROBATE (Power to distribute the wealth) from a Court of Law, as it is time consuming, and in some countries like Kenya, in order to obtain Grant of Letter of Administration, two SURETIES would be required, each one having to give SURETY amounting to twice the value of the deceased's gross estate. It is obviously difficult to get such sureties, and going to a bank for surety would entail unnecessary expenses.

Pending the receipt of Probate, the Bank account of the Deceased would be frozen and the beneficiaries would not be in a position to draw from the Bank for the Household maintenance, unless there is a joint account and either party is surviving. However, one can always obtain an interim or limited grant for specific purpose, say to operate a business or bank account etc, with a view to preserving the deceased's estate pending full grant.

There is a likelihood that certain acts for example Hajj, prayers and fasts for so many days missed by the deceased during his lifetime, would remain unperformed; and certain wishes of the deceased would remain unfulfilled.

In case no one is willing to become a Trustee, the government (Public Trustee Department) will take over the administration. Again this would result in delay and would entail expenses.

So, although the law (the State as well as Islamic) does not say that making of the Will is a must; but by looking at the consequences of not having a Will, it is necessary – both from legal as well from Islamic aspects, to have one and avoid misuse of ones estate after death.

Every man and woman should make a Will. The conditions regarding the capacity of the testator making a Will are dependent upon the laws of the country in which the testator lives, and subject to such requirements, which may have an overriding effect.

2. The One-Third Option

After a person dies, there are certain possible relationships between him and his estate. These are:

he has full control over it through a Will

he has partial control over it through a Will

he has absolutely no control over it

Islam has taken the middle position. It says that when a person dies, he still retains the right to decide about up to one-third of his entire estate. But as far as the two-thirds are concerned, the deceased person loses the right to dispose according to his wish. The two-thirds must be divided according to the shares specified by the Shariah. (Most of these shares have been specified in the Holy Qur'an itself.) This law is part of the overall system, which Islam has introduced for the distribution of wealth in society.

The right of disposing the one-third according to your own wish can be exercised only by making a Will. You can do whatever you like with the one-third: give to a family member, a relative, a friend, a charitable cause or organization, etc. For example, you can use the 1/3 or a part of it to make – if you like – the shares of your wife or your daughter equal to those of your other children.

When the Holy Qur'an talks about Wasiyyah, which is normally translated as "Will", it refers to the Will covering mainly the one-third only. For example, it says:

0 you who believe! It is prescribed upon you that when death approaches one of you – If he leaves behind plenty – then he should make a Will (Wasiyyah) for his parents and near relatives in the one-third. This is a duty upon the pious people. (2:177)

Writing more than one-third to a person or a cause means depriving the potential heirs of their rightful share in the estate; and, therefore, it is considered unjust and wrong. The Holy Qur'an says, if a person fears that the testator is [wrongfully] inclined [to one party] or is sinning [by depriving the rightful heir in the Will, and so that person intervenes between the testator and the potential heirs] and makes peace between them—then there is no sin on him. All… is Forgiving, Merciful. (2:182) What has been described in this verse as wrongfully "inclining to one party" and "sinning by depriving the rightful heir" is related to the two-thirds of the estate.

The one-third will be assessed after taking those expenditures, which are incumbent upon the whole estate, like funeral expenses, and the legal or religious debts.

Monetary obligations (Religious or Legal) are to be deducted out of the whole estate whether the testator made a Will or not. Some examples are: debts owed by him, property sold by him but not delivered to the buyer, the price of articles purchased by him but not paid for. Sureties and guarantees if necessary to be made up, fines, taxes, death duties, Khums, Hajj, Zakat, Raddul-Madhalim, monetary retributions as those of Kaffarra of Ihram and Saum, monetary Nazr like Nazr of Sadka, etc. When all monetary obligations of the estate of the deceased are deducted, then the one-third of the remaining property will be the subject of the Will. (The testator can, however, specify that certain monetary obligations be paid out of the one-third instead of the whole estate).

Since the testator has got the right to dispose of the one-third of the net estate, he can bequest the same in accordance with his own personal wishes.

In order to prepare a ‘Good Will’ (according to Ahadith), it is highly recommended to bear in mind the following Mustahabat while making bequest:

Bequest made for feeding poor and incapacitated people;

Bequest made in favour of relatives, for example children of one’s own deceased son or daughter;

Bequest made in favour of other poor or incapacitated relatives;

Bequest made in favour of one’s own parents;

Bequest made for the maintenance of religion.

One could also make a bequest for Sadaqate Jariyah that is having perpetual benefits, for example, donating to hospitals, schools, mosques, building of wells, and the like.

Other ideas for the distribution of the one-third

Families usually have family trusts. In order to keep the perpetuity of the main objectives of the trust created the trust could be in the name of the Jamaat or the Regional Federation, or in the joint names of the family and the Regional Federation, so that the trust is maintained and used for what it was originally planned for. The other issues is that the Jamaat can claim the trust because it is an institution whereas the family members may not always be able to do that, especially if they don’t live in the country in which the property is.

1/3 of the property can also be bequeathed to the Jamaat to which one belongs. You could even take out a life assurance in the name of the Jamaat like one would take out in the name of the family.  You can also take out education policies in the name of the Jamaat and/or in the name of your children.

For men, in today’s situation you could also give 1/3rd to your wife, to increase her share of inheritance.

3. What is an "Estate "?

An "estate" is the collective name for everything that you own. The estate consists of the followings:

all properties, goods and investments that are in your name.

half or the specified portion of the goods and investments in which you are a co-owner.

The first type of property is very straightforward—the entire estate will be divided according to the will and the specified shares of the heirs.

But there are certain cases in the second type which need explanation:

Joint Account: According to laws of some countries, with death of one spouse, the money becomes the property of the surviving spouse. Such a transfer of money is not valid in Islam: Islamically, half of the money in that account belongs to the surviving spouse and the other half will become part of the deceased's estate.

House: House are normally in the name of the couple. Such ownership can be of two types' common ownership and tenants in common. "Tenants in common" is also without any problem because when one spouse dies, his/her share becomes part of the estate.

But in "common ownership", there is a problem because with the death of one spouse, according to laws of some countries, the entire property becomes that of the surviving spouse. This is contrary to Islamic laws, which says that the surviving spouse gets his or her 50% and the remaining 50% becomes part of the estate of the deceased.

We will talk more about this below.

4. Who can inherit?

After disbursing the one-third according to your Will, your remaining estate is to be divided among the heirs mentioned in the Holy Qur'an: the surviving spouse and blood relatives.

No one can prevent the spouse from inheriting his or her specified share from the estate of the deceased spouse.

As for theblood relatives, there are of different degrees.

First degree:                       your parents & children

Second degree:       your grandparents & siblings

Third degree:          both your maternal and paternal uncles & aunts and their children

Text Box: SPOUSeEThe right of inheritance by virtue of matrimony appertains to the

individual heirs under all circumstances. A husband or wife is never excluded from inheritance. A widow or widower is entitled to the specific share before the estate is divided amongst the heirs succeeding by virtue of blood relation (Nasab).

It is very important to note that the laws of the country in which the Testator is domiciled, may have an overriding effect on the Shia Inheritance Law, and upon such matter as classification of heirs, unless and until that country also gives recognition to the Shia Inheritance Law.

Whilst devising a Will it should be borne in mind that the Testator has got a right to disposeonly one-third of his estate according to his own wishes. The remainingtwo-thirds must be distributed to the heirs in accordance with the laid down rules of the Shariah. The Shariah is very clear in this matter and has laid down specific shares and proportions for distribution to each class/es and group/s as applicable. For the classes and groups, see the diagram above. 

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5. Basic Shares of the Most Common Heirs

What you see below are the basic shares of your most common heirs. In these examples, you have been considered as the deceased and the relatives mentioned here are your heirs.

Your Heirs

Their Shares

YOUR FATHER

if you had a child    16.66% (1/6)

if you had no child whatever remains after share of the mother and/or the spouse.

YOUR MOTHER

if you had a child or brother* 16.66% (1/6)

if you had no child or brother* 33.33% (1/3)

YOUR HUSBAND

if you had a child 25% (1/4)

if you had no child   50% (1/2)

YOUR WIFE

if you had a child    12.5% (1/8)

if you had no child   25% (1/4)

CHILDREN

whatever remains after giving the shares of the parents and/or the surviving spouse.

a male child gets twice the share of a female.

* In presence of a parent (or a grandparent) or a child (or a grandchild), the brother of the deceased does not get anything. However, he affects the share of the mother: instead of 1 /3, it becomes 1/6.

(a) Will a female child gets half of a male child's share?

It is not a male versus female issue; it is not a sexist issue. If it were a sexist issue than why do we have cases in inheritance where females get the same percentage as their male counterparts. For example:

if daughter is the only heir from the first group, then she inherits 100% and she excludes her grandparents and her uncles.

a mother in most cases gets 1/6, the same share as that of a father.

So, why is there difference? The difference in inheritance is based on economic responsibilities: those who have been given greater burden of responsibility have been given greater share in inheritance. Rights are tied to responsibilities. The son gets a larger share because he has his family to take care of, while the daughter is taken care of by her husband.

Another example of the inter-relation between responsibility and rights is the case of the mother: if parents are the only heirs and the mother has no other sons to take care of her, then her share increases from 1/6 to 1/3.

Objection: What if the daughter's family is not rich or that she is a minor? Answer: The one-third option has made the Shariah laws quite flexible. If you think that your daughter needs extra help, then you can give up to the one-third of your estate to her:

son

daughter

44.44

22.22

out of the 2/3

5.56

27.78

Possible use of the 1/3

50.00

50.00

(b) Wife's Share:

The wife's share is 1/4 if the husband was childless or 1/8 if he had a child. This is basically because of two reasons: it is possible for a woman to marry again; and, if she has grown up children, then they are responsible for her maintenance.

However, even in this case, the one-third rule makes the Shariah very flexible. Look at the following example:

Wife

share in %

Son

share in %

Daughter

share in %

12.5

58.34

29.16

out of 100%

8.33 + 33.33 = 41.66

38.90

19.44

possible use the 1/3 option

6. Wife’s Share

Since the share of the wife is somewhat complicated, it is necessary to explain a few points separately:

Firstly, as the definition of the "estate" shows, a house jointly-owned by a couple is divided – according to the Shariah – into two: half becomes part of the estate of the deceased, and the other half was from before the property of the surviving spouse.

Secondly, according to the Shariah, the wife is not entitled to inherit land of her husband (whether an agriculture land or a residential plot): she only inherits the house on the land according to her proportional shares in inheritance. In common ownership case, the wife is the owner of 50% of the house and the land; the other 50% becomes part of her husband's estate from which she will inherit only 6.25% of the house.

So in the end, the wife becomes the owner of 56.25% of the house and 50% of the land. This creates practical problems in some parts of the world: a house cannot be divided; if other heirs insist on their share in the house, then it has to be sold and the price divided accordingly; it is also difficult to assess the value of the land separate from the house, etc.

Therefore, the following is suggested:

Either give the house to your wife during your life-time.'

Or, if the value of the 50% of the house plus the land is within the one-third of your entire estate, then write the entire house to your wife in your Will. In this way, half of the house plus the land is her property from before and the other half will go to her on strength of the 1/3 option in your Will. In theory, it will work out like this:

50% of the land and house belongs to your wife.

6.25% of the house is your wife's share of inheritance.

50% of the land + 43.75% of the house goes to her by using the 1/3 option.

Or, if the value of the 50% of the land is more than the one-third of your estate, then discuss it with your other heirs (parents and children) and ask for their consent to write the entire house for your wife in the Will. If they give the consent (which is irrevocable), then you can write the house to your wife in the Will even if it is more than her proportional share of inheritance.

7. Executor or Executrix

It is a normal practice to appoint your spouse or another family member as the executor of your Will. There is nothing wrong with this. The only conditions which are necessary for an executor/executrix is he or she should be Baligh, sane, and a Muslim. It is not necessary for him/her to be 'adil; Trustworthiness would be a sufficient quality for an Executor.

If you accept to be an Executor for someone's Will, then it becomes Wajib for you to fulfil your duty. You can only reject this responsibility while the testator is alive; but if the Testator dies before such rejection, or without the information having reached him, the retraction is null and void, and it is incumbent upon the Executor to assume the responsibility. An Executor cannot reject this role after his/her death.

Appointment of Executors (administrators, trustees)

A person has a right to appoint an Executor/s of his own choice. He has the power to confide the execution of his last wishes to whomsoever he likes, subject to the following restrictions:

Executor (Wasi) must be an adult. But, if a minor is made an Executor together with an adult on the condition that the minor's rights and duties would commence after his-attaining adulthood (Bulugh) the appointment is valid.

A woman can be appointed as an Executor. An heir or even a blind person can also be appointed as one.

The Executor must be sane (of sound mind).

The Executor should be a Muslim. If he renounces Islam, the executorship will lapse and he cannot be reappointed as an Executor even after he has re-embraced Islam.

The Executor must be trustworthy, though not necessarily ‘adil (i.e. of approved probity according to Shariah).

Note that:

An Executor may apportion reasonable normal remuneration for his services. But, when there is an express implied signs that services be honorary, this Executor must perform his duties without remuneration, provided he had accepted the nomination.

An Executor cannot appoint his own successor or cannot entrust the management of the testator's property to his own Executor or to any other person unless the testator had authorized him to do so.

It is advisable, therefore, to make a provision in the Will givingpower to the Executor/s to nominate successor/s and to enlist assistance from others for the smooth management of the affairs of the estate.

Why appoint an Executor?

Ensuring that your estate is distributed in the way laid down in your Will is the duty of an Executor. Executors are responsible for dealing with the affairs of someone who has died, in accordance with the terms of the Will. They will collect all the assets, settle all debts and liabilities, and distribute what is left to the beneficiaries.

When choosing your Executor(s), you should consider people you know, trust and who you believe will be willing and capable of accepting the responsibility when the time comes.

You can appoint anyone you wish to take this responsibility and many people chose a relative or a close friend, however there are disadvantages in doing this. The person appointed may die before you, or may be a beneficiary under your Will, which can lead to awkward situations with other beneficiaries. Some of the tasks involved in administering an estate can be onerous, time consuming and often need legal and taxation expertise. For some Executors, this may be a worrying prospect.  The appointment of a professional specialist Executor with the necessary skills and expertise to act with integrity and impartiality will remove all these worries.

Nobody likes to contemplate the effect their death will have on their family and friends. Yet, at a time of personal sorrow, perhaps the heaviest burden one can leave behind is the administration of one's estate.

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8. Guardian of Children

It is very important to write in your Will about the guardian and custodian of your children. Under normal circumstances, the surviving spouse is made the guardian, and this is indeed, the best decision.

It is important to note here, for the sake of record, the conditions, which must be found in the guardian of your children. The guardian must be a Muslim, sane, and trustworthy. Those who have the right of custody of children (in order of preference) are: father, mother; paternal grandfather; and then anyone specifically appointed as the guardian of the children. However, the duty of maintenance for the children falls upon the following (in order of preference):  father; paternal grandfather; mother; other grandparents collectively.

The last person in this list of custodians can be from outside the family, but one must be very careful in selecting such a person. The most important condition is that he/she besides being trustworthy must also be a Muslim who will raise the children according to the teachings of Islam.

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9. Updating your Will

Having made a Will it is important to ensure that it continues to meet your requirements over time. If your circumstances change you may need to amend the terms of your Will to reflect the new position. This is a common situation and you should view your Will as something that can be easily revised at any time.

Equally important to making a Will is that you review it regularly to make sure that it reflects any changes in your circumstances or in the names of those you would like to benefit.

Changes in financial or marital status, or a wish to include new family members, are things that could lead to a need to change your Will. During the review, you could also take into consideration any new legislation, which may help reduce your inheritance tax liability.

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10. Some Legal Matters

For a written Will to be recognised in the Court of Law, must be:

dated,

hand written or typed,

signed by the testator, and

attested bytwo witnesses.

The testator must sign the Will in presence of the two witnesses. It is not necessary for the witnesses to know the contents of the Will. The witnesses MUST NOT be the heirs or beneficiaries of the testator, otherwise the bequests to them could be void.

The names and addresses of the witnesses must be recorded against the attestation clause/signature of the testator at the time of signing, not later.

After the Will has been executed, no additions to, or alterations to it may be made. Any addition or alteration to the Will can be made by way of Codicil, (addition to Will) but it is not advisable to make a Codicil, as this can create complications in the interpretation of the provisions contained in the Will. It is better to prepare a new Will rather than make additions or alterations to the original Will.

In some countries like Kenya, no stamp is required on a Will, but it can be registered at the Land Office by paying stamp duty, but this requirement will be dependent upon the laws of the country where one is residing.

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Glossary

Prior to devising a Will, the definitions of some of the terms used should be understood

Will It is a directive, which is also known as Testament. In terms of Shariah it is called Wasiyyah.

Testator – Person making aWill. He is called "MUSI".

Beneficiaries Persons having right to inheritance. They are also as heirs or legatees. The beneficiaries are called" Musa Lahu".

Executors – Persons appointed by the testator, to execute, administer and distribute the estate in accordance with the Will. They are also known as Administrators or Trustees. They are called" Wasi".

Estate – All property/ies owned by the testator at the time of his death that is subject to distribution, for example land, building, cash in hand, cash at banks, shares, motor cars, etc.

Net Estate – Net Estate is a person's estateless all debts owing by the testator at the time of death including estate duty, income tax, Khums, Zakat, etc.

Bequests or Legacy These are specific grants made, viz, grants made to the particular members of the family or allotments made to the poor or for the advancement of religion, etc.

Probate – Power to distribute the wealth.

Chapter Three: The Relation between Science and Philosophy

In the last two chapters we learned that both the subject of science and philosophy and their research methodology are different and thus science can no more solve a philosophical problem than philosophy can solve scientificone. In short philosophy and science cannot replace each other.

However, this does not mean that the two disciplines are totally disconnected and have no influence on each other. The present chapter aims at explaining this point and is divided into three section 1The impact of science on philosophy 2 The impact of philosophy on science and 3. The priority of philosophy over science, which is the conclusion draw from the two previoussection.

The impact of science on Philosophy

Philosophy questions are divided into two groups the first group is not independent from science, in the sense that it is influenced by changes and development in scientific theories while the second group is independent for science. The first group is called philosophy after science and the second Philosophy before science lets us now consider these two types of philosophy issues.

Philosophy after Science

The reason why the change and development of scientific theories influences the outcome of the questions of ‘philosophy after science’ is that in this group of questions scientific theories, in different ways, are taken as presuppositions for philosophical questions. By a presupposition we mean a statement that in a certain field of learning is assumed to be true independent of any proof, for all or some of the questions in that are dependent upon it. The reason its validity is assumed independent of ay proof is either because it is self-evident, or it has been taken for another discipline where it validity has been proved already, or has been accepted with n evidence or reason whatsoever. In what follows we will discuss the different ways in which scientific theories are taken as presuppositions for philosophical questions.

The Scientific Theory raises a Philosophical Question

In some of the questions of ‘philosophy after science’, the philosophical question can e discussed essentially on the basis of a scientific presupposition. In such cases, science discovers a certain thing with characteristics that are either apparently contradictory to some philosophical laws so that the removal of this opposition would create some new issues for philosophy or, at the least, application of clear principles of philosophy to which will necessitate a new intellectual analysis. For example, the discovery of energy, the consequent appearance of the theory of the transformation of matter into energy and the emergence of particles of matter from condensed energy have the raised the questions in philosophy as to what the essence of energy is. Does it have mass or not? If it does, what differentiates it from ordinary bodies? If not, how can something possessing mass change into something that has no mass? In any case, a new material form that has not been discussed in philosophy heretofore has to be accounted for.

The Scientific Theory as a step to Philosophical Demonstration

In such cases the philosophical issue is discussed on the basis of tangible or intuitive issues or according to previous philosophical discussions, rather than on the basis of scientific presuppositions.

However, the philosopher in his attempt to prove the validity of the philosophical position must depend on the scientific theory as one the premises of his demonstration. On other words, in these cases the philosophical question has only a rational-experiment solution. For example, in the philosophy of Avicenna, in order to prove that the number of the abstract immaterial incorporeal existents is ten, the Ptolemaic geocentric theory is employed.

The Scientific Theory determines the Extensions of the Philosophical Theory

In these cases, in the premises used in proving a certain philosophical theory or in the philosophical theory itself the philosopher employs a concept that has a tangible extension, such as the concept of body, the concept of expansion and the concept of contraction, which in the old physics were called ‘penetration’ and ‘condensation’. The role of the scientific the scientific theory is to make the extension of that concept known to the philosopher. For example, the atomic theory, at the time of its advent, showed that the true extensions of the body in different philosophical precepts proved for body are not these observed bodies, but rather the electrons and nuclei. With the fission of the nucleus and the discovery of nuclear particles it has become clear that the true extensions of body are electrons and nuclear particles, and so on. In these cases, besides showing the extensions, the scientific theory often corrects mistakes made by philosophers.

It is clear that in the above cases any change or development in the scientific theory will result in a corresponding effect on the dependent philosophical question. However, it should be kept in mind that few philosophical questions fall within the category.

Philosophy before Science

It has already been said that ‘philosophy before science’ includes that group of philosophical questions that are independent from science and are therefore unaffected by any changes and developments that occur in scientific theories. This group in turn is divided into two further groups. One group does not take any scientific theory as a presupposition at all. Here, not only philosophical questions introduced independently from scientific theories but their solution also is purely rational. No scientific theory is used in proving them and the determination of the extension of the concept employed in them is not based on scientific concepts. The fundamentality of existence, proving the existence and attributes of God, the unity of divine essence and His attributes and actions, the possibility of resurrection predestination, freedom, and in general the most important philosophical questions are included in this group. The other group consists of those that have both a purely rational solution and also a rational-empirical solution that depend on the scientific theories and presupposes them. It is clear that this group is also independent of science, for if developments alter the scientific theory in question and invalidate the rationalempirical solution, it will not leave the question without a solution independent of all experimentation can always be relied upon; the issue of the immateriality of the soul, for example, is one such question.

The above issues, meanwhile, clearly show that the claim made in the last chapter to the effect that philosophical propositions are a priori is only applicable to ‘philosophy before science’ , which includes the main philosophical questions, rather than to ‘philosophy after science’. All the questions of ‘philosophy after science’ are of the posterior type, for the validity or invalidity of their presupposed scientific propositions can be determined only through experimentation. Thus, demonstrating either the truth or the falsity of these questions ultimately depends on experimentations as well.

The Impact of Philosophy on Science

In the last section we explained the different types of scientific propositions relied on in philosophy in order to investigate the way science influences philosophy. In this section, however, we shall explain the different types of philosophical presuppositions relied upon by science so as to show the manner in which philosophy influences it. For that purpose, we must first study the way in which the sciences are dependent on philosophy, for every need necessitates presupposition of particular philosophical law or laws.

The Dependence of Science on Philosophy in Proving a Subject

It was said in chapter one that every real field of learning, including every science, has a subject that in effect acts as an axis that gathers the different propositions of that discipline around itself and gives them the form peculiar to that particular field in such a way that all the propositions of that knowledge in one way or another deal with that particular subject; that is, they delineate it types and divisions, the relationship between these divisions and the laws governing each of them. It goes without saying that the subject of every field of learning must exist outside the mind; otherwise its study will be a kind of fancy rather than a scientific activity. Therefore, in every field of learning, before we begin our studies, we must make sure that its subject has objective existence.

If the existence of the subject of a certain field of learning is evident, it will not need proof; however, if it is not evident, we have to prove it or may even have to discuss its nature. Now, where can we deal this issue? Is it in the particular field of learning itself? No! For, every kind of knowledge begins with the assumption that its subject exists, and no scientist qua scientist needs to prove the existence of the subject of his study. Keeping in mind what was said in the first chapter, proving the existence of things and determining their nature are activities that belong only to the domain of philosophy and not to that of any other intellectual discipline.

Therefore, those fields of study the existence or nature of whose subject is not evident are dependent on philosophy.

Thus, the existence of the subject of these fields of learning and the nature of this existence is a presupposition taken from philosophy.

Dependence of Science on Philosophy in Ensuring the Universal and Necessity of its Laws

By law here we mean the genetic (takwini) laws employed in different fields of learning, including science, which describe phenomena and existents, rather than the conventional laws which are promulgated by the legislative bodies of different countries. The salient characteristic of every genetic law is its universality and necessity, in other words, every law is universal and necessary.

The universality of a law means that, firstly, its subject does not refer to a particular thing, or, technically speaking, it does not refer to an individual; that is, it is a universal rather than a particular concept. Accordingly, the terms used in a proposition indicating a certain law should be common names, such as man, electron, or metal rather than proper name such as Avicenna, Iran, or Rakhsh.

Therefore, the proposition ‘Avicenna is a scientist’ does not express a law, for the term, ‘Avicenna’ which is the subject of this proposition is a proper name and refers to only a particular person.

Secondly, the judgment and the predicate expressed in a law which admits no exceptions include all the extensions of the subject the law applies to, be they extensions that existed in the past, exist now, will exist in the future, or any other hypothetical extensions. Accordingly, a proposition indicating a law should be begin with a universal quantifier, for instance, a word like ‘every’ or ‘none’ or other synonymous words, but not with an existential quantifier, such as ‘some’ or its synonymies. Therefore, the proposition ‘Some metals are expanded by heat’ does not express a law, but the proposition ‘every number is either even or odd’ expresses a law. In logical terms, universal proposition can express a law rather than particular (existential) or personal propositions. In short, every law expresses a particular judgment that includes all the things the subject of the law is applicable to.

The necessity of a law means that once the condition is stated in the law are present that law will never be violated; that is. With the stated condition the subject of the law cannot exist without the judgment mentioned in the law.

Therefore, the fact that all the previous, present and future extensions of the subject possess this quality will not be enough for the law; rather, besides these, once the conditions are present, the law must not be violated. If we claim that the proposition ‘the freezing point of all types of pure water under one atmospheric pressure if 0°C’ is a law, this means that, firstly, this rule include all kinds of water in the past, present and future, and even covers everything that is supposed to be water. Secondly once the stated conditions are present, it will be impossible for any type of water not behave in that manner. The result is that in general, the universality and necessity of scientific laws indicate that in equal conditions similar natural elements would invariably behave in a similar fashion. In short, nature always behaves in a fixed and unchanging manner.

In order to understand the importance of the universality and necessity of scientific laws it will suffice to note that all the progress man has made in industry and technology and the great civilisation he possesses today is due to the discovery of these laws, and their whole importance is due to their predictability. With their help, especially when they put into mathematical terms, we can perceive the past, the present and the future behaviours, conditions and states of phenomena, such as calculating the age of the earth, perceiving the invisible symptoms of a disease on the basis of its visible symptoms, predicting the exact time of eclipses, predicting the exact time and place of landing of a missile fired from a certain station, and so on. Finally, the power of prediction of scientific laws is due to a number of factors that include their universality and necessity. For if a scientific law were not universal or necessary, even if we knew and provided all the necessary conditions for the application of that law, there would be the probability that the law would not be valid, and, therefore, in cases that are supposedly similar to those that have been already experienced, the law would not be applicable. There would also be the probability that even in cases where the law has been applicable up to now, though nothing has changed, the law would not be applicable any longer, and it is clear that with the existence of such probabilities prediction would be impossible. Therefore, because of the possibility of prediction according to scientific laws, we cannot deny the universality and necessity of these laws.

Now, on the one hand we know that the instruments of science are sense and experience and, on the other, according to what was said in the second chapter regarding the domain of those things that are understood directly or indirectly by the senses, the universality of a scientific law (continuous invariability in the behaviour of nature) and its necessity (the impossibility of alteration in the behaviour of nature) are not tangible objects, and according to all philosophers, including the philosophers of science, they cannot be experienced. Therefore, n science can possibly provide the required universality or necessity for its laws. It is here that the sciences once again show their dependence on philosophical presuppositions. For this purpose, they take as their presupposition the three philosophical laws, namely ‘the principle of casualty’, ‘the homogeneity of cause and effect’ and ‘casual necessity’.

Relying on these presuppositions, the scientist forms the scientific law in his mind in a process compromised of four stages. In the first he realizes that in general, on the basis of the principle of casualty, some natural phenomena have a causal relationship with others. In the second stage, he turns to nature and in the special samples selected for the experiment, by employing empirical methods, he discovers in detail which phenomenon is the exact cause of another phenomenon. For example, he discovers that in a few samples of tested metals, heat has been the cause of expansion. In the third stage, on the basis of the law of ‘the homogeneity of cause and effect’, he declares that the discovered relationship is universal (invariable and permanent); that is, in similar samples the same relationship always exist. Therefore, when heated, all other untested metals must also expand. Finally, in the fourth stage, on the basis of the law of ‘casual necessity’, he declares that the stated relationship is necessary and once these conditions are present it cannot be violated.

Of the above four stages, the second stage is not certain; that is, in the tested samples the scientist cannot be certain he has discovered the real causal relationship. For example, he cannot be certain that in those samples heating has been the only real cause of the expansion of the metal. In this stage, ancient scientists used to employ the philosophical presupposition, ‘something accidental cannot be persistent or nearly persistent’. The purport of this law is that two phenomena that always or often happen simultaneously, such as heating and metal expansion, would necessarily have a kind of causal relationship with each other, otherwise it would be impossible for them always o often to occur at the same time. Philosophers of science reject this law, and some famous philosophers, such as Avicenna, have also treated it with great caution. In other words, they have been hesitant to employ it. In any case, rejection of this law or hesitation over its use indicates that in the mentioned example it is possible that the cause of the expansion of the metal could be something other than heating. In that case, in the mentioned samples the coincidence of expansion and heating could be only accidental, and in some other metals that have not been tested such a thing may not happen, and, consequently, at the time of heating the metal may not expand. Therefore, we cannot be certain that in the second stage we have discovered a real causal relationship. Accordingly, though the other three stages are certain, the scientific law, which is the result of all four stages, is not certain and there will always be the possibility that certain new phenomena may be observed or new experiments may be carried out where the scientific law in question may not be applicable. In other words, a posterior proposition is falsifiable and could be invalidated, or, as was said in the previous chapter, exceptive. Therefore, this falsifibility and invalidability stem from the negation of the law, ‘something accidental cannot be persistent or nearly persistent’.

One must take note of the fact that the falsifibility and invalid ability of the scientific law stems from the negation of the law ‘something accidental cannot be persistent or nearly persistent’ (in the second stage) and does not negate the law of ‘casual necessity’ (in the fourth stage).

Therefore, though the scientific law is falsifiable and can be invalidated, it is necessary, otherwise it would necessitate that the scientific law which applied to a certain number of samples in certain conditions in the first test may not apply to the same samples in exactly the same conditions in another test, and this would be unacceptable, even by the scientists.

This is proved by the way scientist deal with invalidated scientific laws. Modern science admits the invalidity of the laws of Newtonian physics, nevertheless it still employs them in a certain domain of nature where physical bodies have normal dimensions and velocity - in technology and industry, for example - and on its basis it makes predictions and is certain of the accuracy of these predictions. What is the cause of this certainty? It is their belief in the law of ‘causal necessity’. The scientist unconsciously believes that though these laws are invalid and only by approximation - apply to the domain in question, rather than exactly and without approximation, nevertheless these laws, with this level of approximation, are necessarily always true in this domain.

We cannot say that sometimes they are true in this domain and sometimes they are not, or sometimes they are true with a certain level of approximation and at other times with another level, etc. This is nothing other than the application of the law of ‘causal necessity’.

We can conclude, then, that the principle of causality and the law of ‘the homogeneity of cause and effect’ and the law of ‘causal necessity’ are some of the necessary philosophical presuppositions of all sciences.

Dependence of Science on Other Philosophical Presuppositions

In addition to what has already been said, sciences are dependent on philosophy in other ways too and this indicates that sciences require other philosophical presuppositions. For example, each science studies its subject by describing it.

In fact, the goal of science is to understand the laws related to its subject.

Therefore, before starting any investigation, every science must assume that it is possible to know natural phenomena - including the phenomena considered as the subject of that science - otherwise its entire would be no more than an exercise in futility. Now, the question arises as to what kind of knowledge determines the validity or invalidity of this assumption or its limits and boundaries. The answer is that field of learning that examines the question of knowledge, namely the field of “epistemology” in philosophy. Therefore, the principle of ‘the know ability of the world for man’ is one of the philosophical presuppositions of all sciences. Moreover, all sciences employ the ‘principle of noncontradiction’ and we know that philosophy is the proper place for careful investigation of contradiction and for defining its conditions. Thus, this principles is one the philosophical presuppositions of all sciences. Moreover, all sciences, more or less, employ the principles of impossibility of contrary and the impossibility of circle and infinite regress, while proving these principles and solving problems with them belong to the domain of philosophy. Therefore, these three principles are also among the philosophical presupposition of sciences.

Besides the above mentioned philosophical principles, which are needed by all sciences and are among common philosophical presuppositions, there are other principles in philosophy which are needed only by certain sciences; in other words, they are philosophical presuppositions particular to those sciences, such as the principle of simplicity, the question of the existence or non-existence of natural movements’, the question of ‘the existence or nonexistence of absolute time’, the question of ‘the existence or non-existence of absolute space’’, which are used in nonhuman empirical sciences, and the question of ‘the existence or nonexistence of the whole as something independent of the parts’, the question of ‘determinism versus free will’, which are used in human empirical sciences.

However, here we do not intend to list all the philosophical presuppositions of sciences, and no doubt further investigation will reveal more presuppositions.

The Priority of Philosophy over Science

So far we have seen that philosophy is assisted by scientific presupposition and sciences are assisted by philosophical presuppositions, with the difference that scientific presuppositions re used only in some philosophical questions (philosophy after science) and there is no scientific presupposition on which all philosophical questions (philosophy before science) do not need the sciences all together.

However, all scientific questions use general philosophical presuppositions, such as ‘the principle of noncontradiction’, the principle of ‘the know ability of nature’, ‘the principle of causality’, the law of ‘the homogeneity of cause and effect’, the law of ‘causal necessity’, and so on, especially the first and the second principles. Consequently, all scientific questions without exception need philosophy. Thus, we can have philosophy without science but no science without philosophy. In other words, philosophy is not dependent on science, but science is dependent on philosophy.

Couched in philosophical terms, philosophy has priority over science. Moreover, the above distinction necessitates another difference related to the way presuppositions are used. In explanation, we can say that the general presuppositions on which all the questions of a science or a number of sciences are dependent are not used as “means”, but the presuppositions on which one or some questions of a particular field of learning depends on often are. When we speak of a presupposition being used as “means” we mean that it is used as a premise in demonstrating a statement or statements in a particular field of learning. This kind of presupposition is productive, because from its combination with other premise of demonstration a kind of deduction is formed, which in turn produces a conclusion, such as the principles of Euclidian geometry, which are used as the premise of the demonstrating for proving the propositions of that geometry. When we speak of a presupposition that is not used as a “means”, on the other hand, we mean that presupposition that is not used as a premise of a demonstration in any arguments; nevertheless, the truth if that presupposition must be accepted in any field of knowledge that includes it. As examples we can mention the rules of interference in logic, the ‘principle of noncontradiction’, the principle of ‘the know ability of the world’, the principle of causality, the law of ‘the homogeneity of cause and effect’, the law of ‘causal necessity’, ‘the principle of simplicity’, assuming the existence of the subject of a field of learning where the existence is not evident, and so on. The philosophical presuppositions of the sciences are often “non-means”, while the scientific presuppositions of philosophy are often “means”. Closer to Islam. It is because of his endeavours that today the philosophy of Avicenna is considered the most nature complete and important expression of Peripatetic Philosophy in the Islamic world. Thomas Aquinas the great medieval European philosopher is one of his book admits this with great respect and modesty.

At the end of his life Avicenna directed his attention to a philosophy he called ‘the philosophy of the select’ and common people. What this philosophy of the select is, is still most entirely clear for as it has already been motioned his Al-Hikmah al- Mashriqiyyah (Oriental Philosophy) that discussed this philosophy is not extant.

Nevertheless some philosopher in their study of the esoteric philosophy of Avicenna, have come to the conclusion that the philosophy of the select or the Oriental Philosophy is not purely demonstrative but rather a kind of philosophy whose ultimate end is resting man from the imperfect and limited either world and guiding him to the higher spiritual world and the pure light, For further explanation see.

1- Ibn Qifti Tarkh al-Hukama edited by bahin Daraie Tehram Tehran University press 137 pp 555 - 570

2- Hanry Corbin History of Islamic Philosophy Henry Thomas The great Philosophy M.Notahharii Collected works nol 13 pp 80-86

3- See Avicenna Al-shifa section of Al-

Mantiq (Logic) and Al-Burhan (Argument) Qon the Library of Ayat Allah Al-Masrashi al-Najafi 1404 AH 4 vols 3 pp 96 - 97

4- for further explanation se hastishenasi (Ontology) by the present author fifty edition Chapter 4 the Second Problem pp 58-64

5- The principle if the Knowability of the world and the principle of noncontradiction are both self-evident and therefore do not belong to the question of any particular discipline, however because they the law and precepts of the absolute existent and therefore, naturally, defining their exact purports, investigating the condition of their validity and refuting the objections made to them mainly belong to the domain of philosophy, they are counted among the question of philosophy. Perhaps in such cases using the term ‘question’ denotes a ‘statement’ that has to be proved.

Therefore it would be better to call such principle ‘philosophical statement “rather than” philosophical question ‘’

6- According to the principle of simplicity, nature performs its task in the simplest way possible. This principle is employed in cases where in order to explain a certain nature phenomenon there are two or more acceptable theories. In such cases according to the principle of simplicity the theory that provides the simpler explanation should be preferred. The preference which scientists given to non- Euclidian geometry concerning is very vast space is based on this principle.