the constitution of medinapdf

Int. J. Middle East Stud. 41 (2009), 555–575. Printed in the United States of Americadoi:10.1017/S0020743809990067

Saıd Amir Arjomand

T H E C O N S T I T U T I O N O F M E D I N A : A

S O C I O L E G A L I N T E R P R E TAT I O N O F

M U H A M M A D ’S A C T S O F F O U N D AT I O N

O F T H E U M M A

One of the oldest extant documents in Islamic history records a set of deeds executedby Muhammad after his migration (hijra) in 622 from Mecca to Yathrib, subsequentlyknown as “the City [madına] of the Prophet.” Marking the beginning of the Islamicera, the document comprising the deeds has been the subject of well over a centuryof modern scholarship1 and is commonly called the “Constitution of Medina”—withsome justification, although the first modern scholar who studied it at the end of the19th century, Julius Wellhausen, more accurately described it as the “municipal charter”(Gemeindeordnung) of Medina.2 In 1889, Wellhausen highlighted the text’s antiquity,which has been acknowledged by even the most skeptical of contemporary “source-critical” scholars, Patricia Crone, who thinks that, in Ibn Ishaq’s Sira, “it sticks out likea piece of solid rock in an accumulation of rubble.”3

The significance of the text cannot be reduced to its antiquity, however. Furthermore,this significance varies from generation to generation. History is an open book, andthe past can always be reread in the light of present concerns and from the horizonof expectations of the future.4 Medieval Muslim scholarship primarily followed IbnIshaq in seeing the document as “Muhammad’s pact with the Jews of Medina” but alsorecognized it as an important text in public law. In fact, the text used as the basis ofmy interpretation and translation is taken from a 9th-century treatise on public law, Abu–Ubayd’s Kitab al-Amwal.

The constitutionalist reading of the document that accounts for its designation inmodern scholarship as the Constitution of Medina (CM) acquires new immediacy withthe current widespread preoccupation of Muslims throughout the world with Islamicconstitutionalism. The agenda for research in the human sciences, including historiog-raphy, is set by the values of each epoch. As “the light of the great cultural problemsmoves on,” this research, as Max Weber puts it, “follows those stars which alone areable to give meaning and direction to its labors.”5 This study of the CM as proto-Islamicpublic law is accordingly guided by the prominence of a constitutional rereading ofIslam among the values of our generation.

Saıd Amir Arjomand is a Distinguished Service Professor in the Department of Sociology, State Universityof New York, Stony Brook, N.Y.; e-mail: [email protected].

© 2009 Cambridge University Press 0020-7438/09 $15.00

556 Saıd Amir Arjomand

E A R L IE R S C H O L A R S H IP A N D T H E C O N T R IB U T IO N

O F T H E P R E S E N T S T U D Y

Wellhausen was the first to assess the document’s significance with a fresh “constitu-tional” insight derived from the constitutionalism of 19th-century Europe. He did sowithout undue presentism, however, labeling the legal document a “municipal charter”in preference to a “constitution.” Muhammad Hamidullah similarly translated and an-alyzed the CM under the stimulus of 20th-century Islamic constitutionalism, callingit “the earliest written constitution of a state in the world.”6 The willful interpretationof the CM as “the constitution of a state” is not supported by the text, however. Irecover Wellhausen’s fundamental insight that the object of the charter was the creationof a political community: the major constitutional issue for Muhammad was not theformation of a state but rather the settlement of the religious question. The lasting effectand significance of the CM accordingly stems from its laying the foundations of theclassic Muslim system of religious pluralism.

R. B. Serjeant’s interpretation of the CM was not informed by any interest in con-stitutionalism but rather by parallels between 7th-century Arabia and contemporaryArabian (and particularly Yemeni) tribal society and customs.7 His fundamental insightwas that the CM was a “pact of security” executed by Muhammad according to ancientArabian custom between the Muslims and the inhabitants of Medina. My inference fromthis insight, combined with Wellhausen’s, is that Muhammad constituted his distinctivecommunity (umma) in Medina on the basis of a security pact between Muslims whohad either followed him from Mecca or converted to Islam in Medina and a section ofthe inhabitants of Medina, both pagan and Jewish, who became their affiliates. MichaelLecker, the most recent student of the CM, is basically antipathetic to any constitutionalinterpretation. Not mentioning the main Jewish clans of Medina, in his opinion, makesthe document “too vague and too limited to serve as a charter.”8

Moving from the substantive to the formal aspects of the text, Wellhausen and W.Montgomery Watt, as Michael Lecker notes, rightly considered the CM a compositedocument on the basis of internal evidence, but neither attempted to reconstruct itscomponent parts.9 Serjeant divided the document into eight components, but the formalreasons for his division were not convincing and the substantive ones somewhat quirkyand eccentric. Against this arbitrary division, M. Gil and, following him, Lecker arguethat it is more reasonable to treat the CM as a unitary document.10 Lecker, however,hedges his bet, stating that it “is made of two clearly defined parts”11; he accordinglydivides his translation and commentary into two separate chapters on “the treaty of themu»minun” and “the treaty of the Jews.” This hardly suffices to bring to satisfactoryclosure the issue of the composite nature of the CM.

I have divided the document into three separate deeds. The most important is the actof foundation of a new unified community (umma) in Medina, which I call the Covenantof Unity. This covenant was supplemented by two further constitutional settlements byMuhammad. My argument is that the document can be divided into two separate parts(corresponding to Lecker’s two parts) with considerable confidence and that the secondpart can in turn be subdivided, with reasonable probability, into a main deed, which Icall the Pact with the Jews of Medina, and a supplement to that pact. My hypothesis isthat the supplement was occasioned by the later adhesion of Banu Qurayza to the pact.

The Constitution of Medina 557

My sociolegal interpretation remains basically valid, however, even if scholars do notaccept this further subdivision of the second part into two deeds.

What follows is an edited translation of the three constitutional deeds with analyticalsubheadings and commentaries. The subheadings are frankly anachronistic, so I givethem in square brackets. They indicate the logic of the sociolegal interpretation ofthe deeds as acts of constitutional legislation. My commentaries primarily draw on theQur»an as a contemporary historical source, accepting Estelle Whelan’s convincing evi-dence and arguments for its early codification12 and Fred M. Donner’s for the historicityand stability of the Qur»anic text and its priority over the sıra literature.13 The earlybiographies of the Prophet are used as a second source, as are a few crucial hadiths thathave passed modern critical scrutiny.

My sociolegal interpretation, in contrast to Serjeant’s and Lecker’s, follows the con-stitutionalist reading of the CM and is a study in historical jurisprudence. It is a rereadingof the pact of security that served as the foundational act of Muhammad’s own umma inMedina, with the hindsight of a new era obsessed by the relation between Islam and thestate. That so little attention is paid to this important document in the massive ideologicalliterature on the Islamic state is surely proof of the poverty of Muslims’ current historicalunderstanding.14 The works of modern scholarship on the CM discussed previously havetoo little sociolegal coherence to be accessible to those engaged in the public debate onIslam and the constitutional order.

If the significance of the CM is lost in the current constitutional debate on Islamicconstitutionalism, we must attribute the loss to the absence of a constitutional history ofthe Muslim world rather than to “objective” institutional developments in Islamic history.The historical jurisprudence of von Savigny, Gierke, and Maitland in the 19th century wasnot just a recording of objective facts but also constitutive of the idea and reality of publicand constitutional law in Western Europe. It constructed the historical–political reality ofmodern constitutionalism that endowed such medieval legal documents as Magna Cartawith the significance they now possess. Current debates on Islamic constitutionalism,by contrast, lack a historical perspective.15 We have a long way to go in constructing asimilar historical reality that could supply badly needed facts for the debate on Islamicconstitutionalism. My intention is not to suggest that the CM should serve as a blueprintfor the 21st century or the basis for any sort of ideological construction. On the contrary,I aim to change the ideological character of the current constitutional debate and giveit a historical basis by reading this most significant early document systematically asproto-Islamic public law. Neither Islamic jurisprudence (fiqh) nor the modern academicstudy of Islamic law can meet the challenge of guiding the constitutional developmentof the Muslim world. What is needed is a new discipline of historical jurisprudence thatcan begin nowhere better than with the historic act of foundation of the Muslim ummain Medina.

The tripartite CM comprises the core of what we may consider Muhammad’s consti-tutional legislation on his own authority as the Prophet of God. This corpus includes hisinstitution of “brotherhood” among the “emigrants” from the Quraysh and the “helpers”in Medina that preceded it, as well as a few security pacts by Muhammad after theconquest of Mecca a few years later that incorporated Arab tribes into the Muslim politybeyond Medina or established extramural Jewish and Christian protectorates.16 Thiscorpus is distinct from what Muhammad transmitted as the commandments of God in


the Qur»an, which contains almost nothing that bears on state formation or public andconstitutional law.17

Antiquarian readers who find the long century of the constitutionalist reading of thisdocument a distasteful aberration can conveniently ignore the terminological scaffoldingin square brackets and focus instead on the proposed correlation of the three parts of thecomposite text with three plausible historical contexts: the initial stages of the creation ofa confederation for revolutionary struggle in the path of God, the institution of religiouspluralism in Islam, and the hypothesis on the pact with Banu Qurayza. They may alsoconsider the explanations, in passing, of the formula used by Muhammad during theritual of sacrifice and of the first use of amır al-mu»minın in the Medinan period.

T H E H IS T O R IC A L S E T T IN G

The idea of a community designated for salvation through a prophet, umma, was al-ready strongly present in the Meccan verses of the Qur»an18 and reflects Muhammad’sconception of the new community he wanted to create. Such a community, however,could not be constituted in Arabia without a revolution, because it required a radicaltransformation of the politically segmented tribal society and the structure of authoritythat held apart its segments, the clans.19 The construction of a new community provedimpossible in Muhammad’s own city of Mecca because of the opposition of the Qurayshleaders, and he moved to Yathrib. In Medina, he had to take cognizance of the existingclans as kinship groups and their tribal solidarities.20 According to a multiply transmittedearly report,

When Muhammad arrived in Medina, its inhabitants were a mixed lot. They consisted of theMuslims united by the mission (da–wa) of the Messenger of God, the polytheists who worshipedidols, and the Jews who were the armored people of the forts and the allies (h. ulafa») of the tribesof Aws and Khazraj. So he wished to establish concord among all of them.21

These three groups—Muslims, pagans, and Jews—made up the social structureof Yathrib and were somewhat mixed because they were organized as clans, withMuhammad’s own emigrating followers reconstituted as the clan of “the emigrantsfrom the Quraysh” (CM.3).22 Shortly after his arrival in Medina in 622, “the Messengerof God wrote a document (kitab) between the emigrants (muhajirun) and the helpers(ans. ar), and in it he made a peace and a covenant with the Jews, establishing them intheir religion and possessions, and stated the reciprocal obligations.”23 The Jews aregiven even greater prominence in Waqidi’s24 and subsequent Muslim commentators’reference to this agreement as a covenant (–ahd) and a pact of mutual security (aman)between Muhammad and the Jews of Medina. Waqidi, however, does not give the textof this or the other pacts with the Jews he mentions subsequently.

In the document preserved by Ibn Ishaq, however, the place of the Jewish clans issecondary. The Jews are only once mentioned explicitly in the first part; it is clear fromthe rest of the text that the Jewish clans were clients of the Aws and Khazraj tribes’ Arabclans and were legally represented by their Arab patron clans and allies. The deed inquestion probably did not include one or more of the three wealthiest Jewish clans withfortification and arms25 and in fact comprised a much broader constitutional settlement,albeit for a community that had yet to grow.


Both of the 8th-century transmitters of the deeds introduce the text as belonging to hisfirst year in Medina, 622.26 Ibn Ishaq places the deed immediately before Muhammad’sfirst acts of legislation for his Muslim followers in Medina, namely, the institution ofbrotherhood (mu»akhat) between the emigrants and the helpers.27 The rite of bondingmen into brotherhood through Muhammad’s mixing their blood dates from before mi-gration to Medina and continued through the rest of his life.28 This particular instance ofgroup fraternization between the emigrants and their Yathribite hosts should be consid-ered a constitutional act, however, especially because its legal implications, includingmutual inheritance, were spelled out.29 Were there an extant text of the deed, I would haveincluded it in the CM.30 Furthermore, the conjunction is important for understanding thefirst part of the text (CM.1–26) on the foundation of the umma, the Covenant of Unity.The very small number of helpers from Yathrib named in the brotherhood ceremony (lessthan twenty)31 suggests that the Muslims were a small minority among the inhabitants ofMedina, whose great majority were Jews and polytheists. The Jews and polytheists wereeach mentioned only once explicitly, because they joined the new community mostly asclients or clansmen of the Muslim helpers.

Further constitutional deeds by Muhammad followed very soon thereafter. Muham-mad’s early revolutionary struggle was on two fronts: against the Quraysh oligarchs inMecca and against his opponents in Medina. The half-Jewish poet Ka–b al-Ashraf wasthe key link between the two groups, and Muhammad had him assassinated in 625, afew months after the Battle of Badr against the Quraysh (624). The murder of Ka–bal-Ashraf “cast terror among the Jews, and there was not a Jew in Medina who didnot fear for his life.”32 Some Jewish leaders approached Muhammad, and he seized theopportunity to conclude a pact with them that not only reaffirmed the status of Jews asmembers of the unified community of Medina but also obligated them to pay the war tax(nafaqa).33 Although Jews and their pagan allies were in a state of shock, “the Messengerof God called on them to conclude a written agreement between himself, them, and theMuslims; and the Prophet wrote between him and them and all the Muslims a treaty/deed(s. ah. ifa) . . . After the Prophet’s death the treaty was kept with ‘Alı b. Abı Talib.”34

The deed in question is very probably the second section of the text (CM.27–52), thePact with the Jews of Medina. Six Jewish groups were now specifically mentioned asclients of their respective Arab patron clans, all parties to the pact. The Jewish clan ofTha–laba, presumably the most important, was named a party to the pact not only in itsown right but also as the representative of its client subclan, Jafna, and of an Arab clientclan.35 Two years earlier, Muhammad could muster very few native clan leaders for theceremony of institution of brotherhood. Now that he was master of the city, many moreJewish groups joined his confederation.

The pact with the Jews brought the question of religion to the forefront of constitutionalsettlement. By this time, the direction of prayer, al-qibla al-ta–abbudiyya, had beenchanged from Jerusalem to Mecca, the house founded by Abraham. Because Meccaremained under Muhammad’s Quraysh enemies, however, Islam urgently needed its ownsacred place, a sacred enclave in the Arabian tradition, and several ancient propheciesconcerning Medina circulated. According to one attributed to a certain Samuel, “Thisis the city whereto will emigrate the prophet [nabiy] from the children of Ishmael. Hisbirthplace is Mecca, his name Ahmad,36 and this his House of Migration [dar al-hijra].”Another predicted more ominously that “Ahmad the prophet will arise in the land of


the Qurayza [ard. al-qaraz].”37 However, the Jews of Medina in general did not acceptMuhammad as the gentile prophet of the last days (Q. 2:85),38 provoking the Qur»an’sdeclaration that “Abraham was neither a Jew nor a Christian; but he was a Muslim anda h. anıf [pure (Arab) monotheist]” (Q. 3:60). The relation between the two Abrahamicreligions was thus badly in need of doctrinal and legal definition.

The issue was doctrinally addressed in the Qur»an. The complaint that Muhammad’sfollowers did not have a written scripture like the Jews and the Christians (Q. 6:155ff)may have predated hijra, but it was in response to the religious situation in Medina thatMuhammad began compiling the recitation (qur»an) of divine revelation into a writtenscripture, a book and criterion of differentiation (furqan) of the final revelation. At thistime, too, the Qur»an introduced the plural “scriptures/books” (kutub) in two creedalstatements.39 Muhammad also used the opportunity of contracting the pact with theJews to settle these two religious issues constitutionally. Unlike polytheism, the religionof the Jews was recognized in the constitution of the umma, and the inner part of Medinawas declared a sacred enclave (h. aram) for the faithful covenanters,40 just as Abrahamhad reportedly declared Mecca a sacred enclave.41

The lasting effect of the constitutional recognition of the Jews’ religion was the insti-tution of religious pluralism in Islam. Muhammad’s constitutional settlement concerningthe Jewish clans of Medina, by contrast, did not have any lasting effect. Already beforethis pact of 625, he had expelled one of the three wealthy and armed Jewish clans, theQaynuqa–, from their fort, and at the beginning of the following year (626) he proceededto expropriate and expel the Nadir; nor did the last wealthy and armed Jewish clan, theQurayza, remain for long. The Qurayza did not react to the elimination of their armedrival, the Nadir, which increased their strategic importance in the defense of Medina asthe only armed Jewish clan living in their own fort. Several reports on the Battle of theTrench in 627 mention Muhammad’s pact or contract—–aqd in Waqidi,42 –ahd and, lessconveniently, walthu min –ahdin in Ibn Sa–d43—with the Qurayza.

Given the increased strategic importance of the Qurayza and their fortress after theelimination of the Nadir, and given Muhammad’s concern with the defense of Medinaduring the intensification of the war with the Quraysh of Mecca preceding the Battleof the Trench (627), it was important for him to reach an agreement with the Qurayza,who were not a confederate clan of the umma. As Wellhausen notes,44 the repetitionof “the Jews of the Aws” (already mentioned in CM.23) on line 57 strongly suggeststhat the paragraph is a later addition. In the context of the hostile move by the Quraysh(CM.54–56), it is plausible to argue, as Serjeant does,45 that a new group of the Jewsof the Aws, presumed by me to be the clan of Qurayza, was added to defend Medina.I therefore consider the last part of the text (CM.53–64) the separate agreement withthe Qurayza and have accordingly edited it as the Supplement to the Pact with the Jewson the Defense of the City. If this interpretation is correct, the supplement was addedbetween 625 and 627, probably around the time of the elimination of the Nadir in 626.

Muhammad accused the Qurayza of breaking their pact immediately after repellingthe Quraysh in the Battle of the Trench. The accusation was confirmed by the Qur»an(8:57–60), where Muhammad is told to make an example of those who break theiragreement: “And if you fear treachery from them, cancel the peace, for God does notlike the treacherous people.” We should assume that the supplement was invoked whenMuhammad made an example of the Qurayza by the judicial murder of all its 400 men


and enslavement of the women and children as “the Jews of Aws,” condemned by thedying leader of their Arab patron clan, Sa–d b. Mu–adh.46

T H E IN T E R N A L S T R U C T U R E A N D L E G A L L O G IC O F T H E

C O N S T IT U T IO N O F M E D IN A T E X T

In addition to the historical evidence for the existence of three separate constitutionaldeeds, my division of the CM text is supported by some formal features of the draftingand, more important, by the legal logic of each section or its coherence as a legal deed.The critical division is between the first two deeds. Little needs to be changed in ourlegal interpretation if my hypothesis is incorrect that the supplement is the agreementconcluded with the clan of Qurayza. It could still be a codicil on the defense of Medinato the earlier pact executed at more or less the same time.

The formal marking of each deed at the end is a sort of theocratic signature. Theconcluding lines of the first two make God and Muhammad the arbiters of any disputesthat may arise among the parties to the deed. If the last deed is essentially a defense pactand a supplement added to the earlier deed, it is understandable that, as its theocraticseal, the provision for judicial arbitration in the earlier deed would be replaced by thebenediction of those who observe the pact of God and his messenger, Muhammad.

The next differentiating formal feature concerns identification of the parties to thedeeds. In the Covenant of Unity, the contracting parties are the faithful covenanters,mentioned in virtually every article, and the Muslims, divided into nine clans: eightnative clans of the tribes of Khazraj and Aws and one of the emigrants from the tribeof Quraysh. The Jews and the polytheists appear incidentally as dependents of the nineclans. The pact and its supplement, by contrast, formally identify the contracting partiesas “the parties to this deed” (ahl hadhihi al-s. ah. ıfa).

As for considerations of legal logic, each deed is a coherent legal treatment of itssubject. The Covenant of Unity is simultaneously an act of foundation of a communityof faithful covenanters (mu»minın), which defines the relations among them, and an actof confederation between them and the Muslims of Quraysh and Yathrib. With regard tothe first aspect, the term “faithful covenanters” appears or is referred to by a pronoun inevery line but the last. Regarding the second aspect, the term appears as the counterpartto the Muslims of Quraysh and Yathrib in the first line and again after each of the nineconfederate clans into which the Muslims of Quraysh and Yathrib are divided.

The second deed, the Pact with the Jews of Medina, aims to include a whole set ofnew Jewish groups into the community constitution under the protection of God, andit coheres around the constitutional regulation of religion. Its institution of religiouspluralism and sanctuary can explain why “faithful covenanters” (mu»minın) is incon-spicuous and occurs incidentally and only at the very beginning (lines 27–28), mainlyto link the two constitutional acts by affirming Jews as members of the unified umma(whose confederate structure had already been constituted by the first act). Where wemight expect mu»minın as the counterpart to the Jews if it were the same act as thecovenant, we find the term “Muslims” instead (lines 28, 44). This is logical given thereligious focus of the deed (see commentary on Article 15, which follows).

The fight (qital) in the path of God is addressed in all three acts that comprise the CM.The defense of Medina and the war against the Quraysh is, however, a secondary concern


in the previous two acts but becomes the focus of the third. The supplement coheresaround the defense of Medina and admits an additional Jewish group to the community,presumably because of its strategic importance in the war against the Quraysh of Mecca.Unlike the pact, however, here religion is relevant only indirectly and through the protec-tion offered in Medina’s sacred enclave. The counterpart to the Jews in participation inthe war effort, therefore, is not “Muslims” but “faithful covenanters” of the confederatecommunity they are joining (CM.56).

What follows is my translation and edition, with emendations in square brackets,of the document called the CM,47 beginning with the Covenant of Unity drawn up byMuhammad soon after his arrival in Medina.

[The Constitution of Medina I: The Covenant of Unity] (CM.1–26)[Article 1. The Covenant of Unity Executed by Muhammad the Prophet] (CM.1)

This is a document written by Muhammad the Prophet (nabiy) between the faithful covenanters[under God’s security] (mu»minın)48 and the Muslims from the Quraysh and Yathrib, and thosewho follow them as clients, join them, reside with them,49 and strive along with them.

[Article 2. Constitution of a Unified Community] (CM.2)They constitute a single community (umma wah. ida) apart from other people.

[Article 3. Components of the Community, their Organization and Responsibilities] (CM.3–11)[3.a] The emigrants of Quraysh keep to their own tribal organization and leadership,50 payingtheir blood money jointly among themselves and ransoming their prisoners in accordance to whatis customary (bi-l-ma–ruf ), equitably shared among the faithful covenanters.[3.b] The clans of Awf, Sa–ida, the Harith, Jusham, the Najjar, –Amr b. –Awf, the Nabit, and theAws keep to their own tribal organization and leadership, paying their blood money jointly amongthemselves at the previous rates [under paganism], and each group ransoming its prisoners inaccordance with what is customary, equitably shared among the faithful covenanters.

[Article 4. Mutual Duties of the Covenanters] (CM.12–13)[4.a] The faithful covenanters shall not leave any [tribally unattached] debtor among them withoutcustomary protection regarding ransom or blood money.[4.b] And no faithful covenanter shall make any alliance with the client (mawla) of anothercovenanter against the latter.

[Article 5. Unity against Internal Enemies] (CM.14)[5.a] The God-fearing, faithful covenanters shall beware of traitors among them, and of thosewho act rebelliously or exact gifts unjustly or commit acts of treachery or cause dissension andcorruption among them.[5.b] Their hands shall be raised against him in unity, even if he is the son of one of them.

[Article 6. Relations with Infidels] (CM.15)A faithful covenanter shall not slay another in retaliation for an infidel (kafir) and shall not supportan infidel against a faithful covenanter.

[Article 7. General Security and Indivisible Protection of God for the Community] (CM.16)The protection (dhimma) of God is one and indivisible, and the lowliest of them [the covenanters]can extend it on behalf of all.51

[Article 8. Relations among the Covenanters] (CM.17–18)[8.a] The faithful covenanters may become clients of other covenanters to the exclusion ofoutsiders.52

[8.b] The Jews who follows us as clients are entitled to support and are granted equal rights; theyshall not suffer any injustice, and no one will be aided against them.53

[Article 9. Unity in Revolutionary Struggle in the Path of God] (CM.19–21)


[9.a] Peace of the faithful covenanters is one and indivisible.54 No faithful covenanter shall makepeace apart from other covenanters in fighting (qital) in the path of God, and that only as a justand equitable decision by them.[9.b] Each raiding party shall fight with us, one after the other.[9.c] The faithful covenanters shall execute retaliation on behalf of one another with respect totheir blood shed in the path of God.

[Article 10. Pledge of Observance] (CM.22)The God-fearing, faithful covenanters guarantee the best and firmest observance of this [deed].

[Article 11. Exclusion of the Quraysh from General Security] (CM.23)No polytheist [mushrik] [affiliated with the community] shall grant protection to property or aperson belonging to the Quraysh nor intervene on the latter’s behalf with a faithful covenanter.

[Article 12. Protection of Life and Institution of Capital Punishment] (CM.24–25)[12.a] Whoever murders a faithful covenanter without cause shall be slain in retaliation uponproof, unless the victim’s next of kin consent [to blood money].[12.b] Carrying out this [capital punishment] is a collective duty of the faithful covenanters fromwhich they cannot be absolved.[12.c] It is not lawful for any faithful covenanter who has affirmed what is in this deed (s. ah. ıfa) andputs his trust in God and the Last Day to support or shelter the murderer [of a fellow-covenanter].Whosoever does so shall incur the curse of God and his wrath on the Day of Resurrection, and norepentance or compensation will be accepted from him.

[Article 13. Constitutional Arbiter and Judicial Authority] (CM.26)Whatever is a matter of dispute among you should be brought before God, great and glorious,

and Muhammad.

[The Constitution of Medina II: Pact with the Jews of Medina] (CM.27–52)[Article 14. The War Levy] (CM.27)

The Jews shall pay the war levy (nafaqa) along with the faithful covenanters while they remain atwar.

[Article 15. Religious Tolerance] (CM.28–37)[15.a] The Jews of the clan of –Awf are a community (umma) with the faithful covenanters,55 theJews having their religion (dın) and the Muslims their religion,56 their clients and their persons,except for any wrongdoer or traitor who brings perdition upon himself and his household.[15.b] It is likewise the same as the Jews of the clan of –Awf with the Jews of the clans of theNajjar, Harith, Sa–ida, Jusham, and the Aws.[15.c] It is likewise the same as the Jews of the clan of –Awf with the Jews belonging to theclan of Tha–laba, except for any wrongdoer or traitor who brings perdition upon himself and hishousehold. As the Jafna is a subclan of Tha–laba, it is treated as the latter; it is the same with theclan of al-Shutayba as with Jews of the clan of –Awf.57

[15.d] Let there be observance [of this] pact and not treachery.58

[Article 16. Permission for Military Engagement] (CM.38–40)[16.a] The clients of Tha–laba are like themselves.[16.b] Any subclan of the Jews is as themselves.[16.c] No one among them can make a sortie without the permission of Muhammad.59

[Article 17. Lawful and Unlawful Violence] (CM.41–42)[17.a] No one is restrained from retaliation for a wound.[17.b] But whoever engages in murder has forfeited his own life and those of his household, unlessgrievously wronged.

[Article 18. God’s Guarantee] (CM.43)God is surety for the most righteous observance of this [pact].

[Article 19. Cooperation at War and Solidarity] (CM.44–47)


[19.a] The Jews are responsible for their war levy (nafaqa), the Muslims for theirs.[19.b] Each must help the other against anyone at war with the parties to this deed (ahl hadhihial-s. ah. ifa).[19.c] Let there be goodwill and counseling between them.60

[19.d] Let there be observance [of this pact] and not treachery.[Article 20. Individual Responsibility and Entitlement] (CM.48)

No one is inculpated for [the act of] his confederate and help is due to whoever is wronged.[Article 21. Establishment of Sanctuary] (CM.49)

The inner part of Yathrib is inviolable/sacred (h. aram) for [the protection of] the parties to thisdeed.

[Article 22. Conditions of Protection within the Sanctuary] (CM.50–51)[22.a] The protected person (jar) is like one’s self, not molested so long as he commits no offense.[22.b] A woman shall not be accorded protection except by the permission of her people.61

[Article 23. Judicial Authority and Constitutional Review] (CM.52)Major crimes or disputes among the parties to this deed likely to cause dissension (fasad) shouldbe brought before God, great and glorious, and Muhammad.

[The Constitution of Medina III: Supplement to the Pact with the Jews on the Defense of the City](CM.53–64)

[24. Preamble] (CM.53)God is surety for the truest and most righteous observance of what is in this deed.

[Article 25. Alliance against the Quraysh] (CM.54–55)[25.a] There shall be no protection for the Quraysh and whoever supports them.[25.b] The contracting parties are bound to mutual support against any attack on Yathrib.

[Article 26. Participation in War and Peacemaking] (CM.56)When/if they are called to make peace, they will do so and maintain it, as will the faithfulcovenanters when similarly called upon, except for those who are at war for religion (dın). Eachpeople is responsible for its portion of the side [of Yathrib] assigned to it.

[Article 27. New Allies of the Covenanters] (CM.57)The Jewish clients of the Aws, themselves and their clients, have the same standing as the partiesto this deed, with full observance on the part of the parties to this deed.

[Article 28. Pledge of Loyalty] (CM.58–60)Let there be observance [of this pact] and not treachery. He who offends shall have done so againsthimself. God is surety for the most truthful and righteous observance of what is in this deed.

[Article 29. Protection of the Medina Sanctuary and Exclusion of Criminals] (CM.61–62)[29.a] This document (kitab) offers no protection to the wrongdoer and the criminal.[29.b] Whoever leaves the precinct of the [Medina] sanctuary and whoever remains within it iscovered by its security, except for the wrongdoer and the criminal.

[Article 30. Benediction] (CM.63–64)God is the protector of the righteous and the God-fearing, as is Muhammad, the messen-ger of God.62 The most worthy of those who observe this deed are the righteous and thesincere.

S O C IO L E G A L C O M M E N TA RY

Article 1

Taking mu»minın (faithful covenanters) to refer to all those who enjoy the security andprotection of God by virtue of the covenant hereby executed by Muhammad, we canunderstand the logic of their subsequent division, in Article 3, into clans as components


of the new confederate community irrespective of Islam. The relatively modest status ofMuhammad at this stage of his career is evident in the reference to him as “Muhammadthe Prophet” here, and simply as Muhammad in the concluding Article 13. Because onlythe Muslims fully accepted his charismatic authority, Muhammad predominantly reliedon his traditional authority as the invited judge-arbiter (h. akam) of the Arab clans ofYathrib. This traditional authority was greatly enhanced by his holy status as “prophet”(however the term was understood by the Jewish and polytheist confederates) and by thevery act of writing the covenant, which made him a unifier (mujammi–) like his ancestor,Qusayy, the unifier of the Quraysh.63

Article 2

This is singly the most important article of unification, creating a single community. Asthe subsequent articles make clear, it is a confederate community of clans comprisingmembers from all three groups of inhabitants of Medina: the new Muslim settlers whohad emigrated with Muhammad, their Arab hosts who had become Muslims, and thepolytheists in their federated clans and their Jewish client clans and allies. “The Muslimsfrom the Quraysh and Yathrib” (CM.1) were thus the soul of the community and destinedto turn it into a community of believers. It was not only that the pact extended thelegal protection enjoyed by clan members to tribally unattached Arab (Article 4.a) andJewish (Article 8.b) individuals who joined the community by converting to Islam. Morefundamentally, as Wellhausen put it,

By keeping the believers within the organization of their clans, they became not only the bondwhich united the clans, but also the leaven which in time was to influence the rest of them. Inthe beginning, the umma was a rather heterogeneous political entity; but since the Muslims wereits soul, this entity naturally tended to create a unity of faith and was strengthened on account ofthis.64

The Qur»an fostered this tendency by affirming the constitution of the community noless than nine times with the very same wording,65 most notably, “This community ofyours is a single community (umma wah. ida), and I am your Lord, so worship me”(Q. 21:92).

Article 3

The umma was organized as a community of clans, not individuals. It was a confederationof clans, eight existing ones and one newly constituted, “the emigrants of Quraysh.” Theprovision of ransom for its members and of blood money for their victims remained aprimary obligation according to pagan customary law, except for the newly constitutedclan of emigrants, which did not exist under paganism (3.a). Custom (al-ma–ruf) andcustomary blood money rates were explicitly confirmed.

Articles 4 and 8

Articles 4 and 8 created a new contractual solidarity among the faithful covenanters andsuperimposed it on their existing clan solidarity and its extension through clienthood.


The customary law of clienthood was allowed within the community but restrictedbeyond it. I take Clause 4.a (CM.12) to refer to individuals in financial need whocannot draw on their clan for customary assistance, and Clause 8.b (CM.18) to includeJewish individuals who joined the community. As Lecker argues, the Jews of the namedArab clans must also have included individual Jewish clients and converts to Judaism.66

Any tribally unattached Arab and Jewish individual who accepted Islam, and to whomcustomary tribal protection was thus extended, was in effect partaking of a contractual,or rather covenantal, solidarity as an individual member of the umma.

Articles 5 and 6

Article 5 draws the moral boundaries of the new community and requires its enforcementagainst internal enemies while Article 6 draws the legal boundaries of the new communityto exclude infidels as the external enemy. The counterpart of “the faithful covenanter”(mu»min) in Article 6 is the infidel (kafir, the denier). The latter term, pregnant withmeaning, was used or coined at this stage because there were polytheists among theconfederates of the umma. Much later, partly for reasons discussed in the commentary onArticle 11 and in the conclusion, the term came to mean the denier of Islam, comprisingthe polytheists and “the peoples of the book.”

Article 7

Article 7 is a critical affirmation of general security and peace within the community.The protection of God is declared one and indivisible. At the same time, every faithfulcovenanter as a member of the community under God’s protection is entitled to extendit to others through the customary institution of ijara (making one into a neighbor).Covenantal solidarity is given a powerful new dimension as a result of the protection ofGod over the community and its individual members. The condition of the emigrantsfrom the Quraysh who had followed Muhammad is generalized to all faithful covenan-ters, thereby tending toward displacing, desacralizing, and subordinating the old ties ofkinship: “Verily, they who have believed and fled their homes and spent their substancefor the cause of God, and they who have taken in the Prophet and been helpful to him,shall be near of kin to the other” (Q. 8:73).

Article 9

Article 9 combines two very important objectives. First, parallel to the affirmation ofthe generality and indivisibility of internal peace and security in Article 7, it declaresexternal peacemaking by the united faithful covenanters indivisible. Second, it endowsthe new community with a divine purpose: revolutionary struggle and warfare in thepath of God. Warfare against the Quraysh of Mecca, hitherto the emigrants’ duty,becomes, as fighting in the path of God, the obligation of all the faithful covenanters inthe new community. An important indication of the immediate implementation of theconstitutionalized holy warfare is Muhammad’s grant of the title of “commander of thefaithful covenanters” (amır al-mu»minın) to his cousin, –Abdallah bin Jahsh, for leading


eight or thirteen covenanters in the raid of Nakhla in 623 that preceded even the firstmajor battle, the Badr.67

Article 11

Article 11 completes the drawing of the legal boundaries of the community in Article6 by excluding the Quraysh of Mecca, whom Muhammad and the emigrants had fledand were fighting, from the divine protection of the community and assistance from anyof its members. What is particularly significant about Article 11 is that it forbids theconfederate polytheists among the covenanters of the unified community from extendingcustomary protections to the Qurayshite enemies of Muhammad. The contrast betweenthe confederate polytheist (mushrik) as an insider in this article and the infidel (kafir)as the outsider in Article 6 is striking. Wellhausen is right in seeing this article as proofthat there were confederate pagan members in the first umma, a fact anachronisticallyeven more disconcerting than the inclusion of the Jews.68

Article 12

This article largely removes blood revenge from the customary jurisdiction of the clanand converts it into capital punishment whose execution is entrusted to the faithfulcovenanters as a collective body (12.a–b). The last clause (12.c) is significant forexplicitly requiring loyalty to the constitutional deed and, even more so, for imply-ing that the belief in the Last Day and the Day of Resurrection, invoked in sanctionagainst disloyalty, was commonly shared by the three groups of faithful covenanters.This required a religious concession from the polytheist confederates. According to IbnIshaq, some of them (the so-called “hypocrites”) continued to deny resurrection evenlater, when they had accepted Islam. 69

Article 13

Article 13 establishes the judicial authority of Muhammad on behalf of God. There is,needless to say, no differentiation between ordinary legal and constitutional disputes,but coming immediately after the requirement of constitutional loyalty, the latter areundoubtedly comprised in the jurisdiction. Muhammad proceeded with the institutionof his judicial authority by holding his court hearings in his newly built mosque andregularizing the procedure of taking oaths beside the pulpit (minbar).70

Article 14

The imposition of the war levy (nafaqa) upon the Jews for the duration of warfareagainst the Quraysh of Mecca must have been Muhammad’s condition for assuring Jewsof protection of the law and tolerance of their religion in ensuing articles. As we wouldexpect, its imposition met with some opposition. Serjeant suggests that the group thatbecame an organized opposition to Muhammad in Medina and was called the munafiqun(“hypocrites”) initially earned this appellation as a result of their opposition to the nafaqa


levy.71 This is the same group that refused to believe in resurrection. We thus have aninteresting case of coalescence of material and spiritual interests.

Article 15

This article forms the core of the pact as a coherent legal deed. It is also of criticalimportance for the integration of the Jewish clients of the confederates from the Awsand Khazraj and had far-reaching consequences. It granted the named Jewish clansprotection of the law and religious tolerance (extended by Article 16 to the Jewish clanof Tha–laba and its dependents). The unified umma was now a confederation of theclans of the covenant that added explicit recognition of religious tolerance for the Jewishclans to their internal autonomy.

The article marks the institution of religious pluralism in Islam, which later developedinto the recognition of “those to whom we have given the book” (Q. 2:121; 6:21, 114;13:36, etc.), or more frequently, the “peoples of the book” (Q. 2:63, 65; 5:69–70; 22:18,etc.) under the protection (dhimma) of God. Religious pluralism in Medina was endorsedin the Qur»an: “There is no compulsion in religion”72 (Q. 2:256). It is noted, however,that religious tolerance was not explicitly extended to the Arab polytheists among theconfederates of the unified community. In fact, in the last years of his life, Muhammadexplicitly denied religious freedom to Arab polytheists. However, already at this timein Medina, Qur»anic revelation formulates the policy for the integration of Jews asmonotheist allies against the polytheists: “Say: O people of the book, come to a word[which is] fair between us and you, [to wit] that we serve no one but God, that weassociate nothing with him [as do the polytheists], and that none of us take others asLords beside God” (emphasis added) (Q. 3:64). Muhammad’s frustration at the rejectionof this rapprochement by the clan of Qurayza, who sided with the Quraysh polytheists in627, makes the terrible vengeance he exacted against them easier to explain: “And [God]brought down those of the people of the book who supported [the polytheists] from theirfortresses and cast terror in their hearts; some you slew, some you made captives. Andhe bequeathed upon you their lands, their habitations, and their possessions, and a landyou never trod”73 (Q. 33:27–28).

Article 17

Article 17 contains two of the most obscure lines of the pact. It allows retaliation forwounds but forbids murder, unless the obscurity is the result of reference to particularinstances unknown to us.

Article 19

Article 19 reaffirms the war levy as a public contribution by all the faithful covenanters toachieve the general goal of the new community, payable by Muslims and Jews separately.The article also seeks to strengthen contractual solidarity among the faithful covenantersby emphasizing the need for good relations and mutual aid and assistance.


Article 20

Article 20 makes each individual member of the community responsible for his/her ownactions only and entitled to protection against violation of his/her rights.

Article 21

Article 21 marks the incorporation of a major institution of pagan Arabian religion,the sanctuary or sacred enclave (h. aram), into Islam. The hitherto secular inner cityof Medina is declared a sacred enclave. A number of Qur»anic verses reflecting theMedinan situation present the umma of Abraham as the prototype of Muhammad’summa.74 Because the house of God built by Abraham was under control of his Qurayshiteenemies, the best Muhammad could do was to declare Medina a sacred enclave, just asAbraham had purportedly declared Mecca a sacred enclave. According to a 14th-centuryhistory of Medina, Muhammad ordered pillars in different directions to be erected tomark the limits of the city as the sacred enclave (dar al-hijra).75 Upon the conquest ofMecca, the institution of hajj around its sanctuary, together with sacrifice, was similarlyincorporated into Islam in the Qur»an (22:25–37).

Article 22

In Article 22, the protection offered the Medinan by the institution of the sanctuarycould be extended by each of them according to the custom of ijara (making one aneighbor), excluding criminals (Clause 22.a). The extension of such protection to awoman, however, required the permission of her male kin (Clause 22.b).

Article 23

This article reaffirms and elaborates the judiciary authority of Muhammad on behalf ofGod.

Article 25

Article 25 is the core of the short supplement to the pact and is what gives it coherence.The deed identifies the enemy, the Quraysh, and singles out the defense of Medina asthe purpose.

Article 26

Article 26 assigns the war tasks and gives each of the parties the right to sue for peace butwith each other’s consent. War for religion, however, is the very significant exception topeace making that can be initiated by each party to the pact.

Taken together, Articles 5, 6, 9, 12, 17, 19, 25, and 26 amount to a decisive movetoward transforming the pagan cult of vengeance into holy warfare. The covenantersbecome “each other’s avengers of blood in the war path of God.”76


Article 27

Article 27 introduces the Jews of the Aws as the new ally of the parties to the pact.

Article 29

Article 29 affirms that the protection of the Medina sanctuary is extended to those leavingMedina, presumably for military sorties (Clause 29.b) but excludes criminals.

Article 30

This benediction concluding the supplement differs significantly from the concludingarticles of the first two deeds by referring to its executor not simply as “Muhammad” butrather as “Muhammad, the messenger of God”—and even more significantly by makinghim the guarantor of the pact alongside God. He was no longer the newcomer to thecity of Medina who had executed the Covenant of Unity but now her undisputed master,signing a pact with the holders of the last bastion of autonomy on its edge, the Qurayza.

Summary

To summarize, the tribal organization of Medina formed the basis for the construction ofMuhammad’s umma. Each clan kept “its leadership and organization,” joint payment ofblood monies, and collective responsibility for ransoming its prisoners. The emigrants ofQuraysh were constituted into a clan alongside those of the Aws and Khazraj. Individualswho lost the protection of their tribes by joining the united community were beneficiariesof the entirely novel contractual solidarity, protected by its security under God butcompensated according to the customary blood money and ransom rates; the Jewsjoining it were assured parity in this universalist respect. All the faithful covenanters withMuhammad (mu»minın) were thus declared to be under the security (dhimma) of God,which the least of them could extend on behalf of all. In contrast, a faithful covenanterwas forbidden to kill another in retaliation for an infidel (among his kinsmen), andthe united community was given collective responsibility for the punishment of crimesagainst its members and for treason. The inner part of Medina was declared the sacredenclave of the faithful covenanter’s sanctuary, on the Abrahamic precedent, and a pactof tolerance allowed Jewish covenanters of the united umma to have their religion, as theMuslims had theirs, as long as they paid the war levy and refrained from treason.77 Lastbut not least, Muhammad made constitutional provisions for the revolutionary strugglein the path of God.

S U B S E Q U E N T C O N S T IT U T IO N A L D E V E L O P M E N T S

As the founder of a world religion, Muhammad did not neglect the ritual reinforcement ofhis constitutional settlement in Medina. He used the Abrahamic annual ritual of sacrificeas an occasion to celebrate the unity of the umma. Muhammad offered God in sacrificeone ram for himself and his family and a separate one in the name “of my communityin unity [ummatı jami–an] who acknowledge Thy oneness and my Messengership.”78


As Muhammad’s power grew in Medina, Arab tribes in the surrounding deserts couldput themselves under the protection of God and his messenger without professing Islam.In this way, Muhammad created an intertribal security system, a Pax Islamica, aroundthe growing polity in Medina. Pax Islamica had a religious kernel: it was a systembased on “the security of God and his messenger.” As Muhammad grew stronger, hedemanded Islam from prospective allies brought under God’s protection but continuedto make purely political alliances with distant and powerful tribes, which submitted toPax Islamica based on Arab norms of tribal alliance.79 The umma was not a suitableterm to apply to this confederate polity, and as Watt points out, it no longer appearsin the Qur»an or Muhammad’s treaties.80 Nevertheless, the CM shaped constitutionaldevelopments in the Islamic polity of unified Arabia in the last years of Muhammad’slife, and it shaped the polity of the Muslim empire of conquest after his death. Religiouspluralism, in particular, stemming from the fundamental conception of Islam as therestoration of the pure monotheism of Abraham, survived intact as a constitutionalprinciple.

After the conquest of Mecca in 630, Muhammad could dispense with this flexibletribal policy and made the proscription of polytheism and destruction of idols his fore-most objective. For the Arabs, submission to Muhammad’s authority came to meanIslam (submission to the one God). Muhammad, however, not only continued but alsofurther constitutionalized the religious pluralism of the second part of the CM in aseries of pacts with autonomous Christian and Jewish polities brought to submissionby his growing military force. In the year 630–31, combining the Qur»anic status of“the people of the book” with the fundamental constitutional principle of “protection[dhimma] of God and his messenger, Muhammad,” he set up one Christian and a fewsmall Jewish protectorates with pacts similar to the prototypical one with the Jews ofMedina.81

C O N C L U S IO N

Islam grew in the confederate community, the Muslims being its animating spirit,so much so that the original distinction between faithful covenanters (mu»minın) andMuslims became increasingly blurred and finally disappeared. Mu»minın came to meanbelievers whose faith in God assured them of inner security. The umma as the heritageof Muhammad was thus brought fully in line with its earliest conception in the Meccanverses of the Qur»an as the new community of believers whose salvation was assured byIslam. When the term umma regained currency after the death of the Prophet, however,it no longer meant the unified political community of Medina but the community ofbelievers. Each umma was now a community of salvation constituted by the messengerwho had brought it divine guidance. The Jews and Christians were the ummas of Mosesand Jesus, respectively, and were now excluded from the umma of Muhammad. Theunified community (umma wah. ida) of the faithful covenanters was now a page inhistory.

The general peace and security of God, as stipulated in the CM, eliminated thelegitimacy of violence by politically autonomous segments of Arabian tribal society. Thenear monopoly of the legitimate internal and external use of violence was in principleinvested in the united community, thereby laying the foundation for a unified structure


of authority—a state. Putting our three constitutional acts together for their overview asthe CM, it is striking that the constitution begins with “Muhammad the Prophet” as theexecutor of the covenant of foundation of the umma, then invests him with authority tointerpret its constitution and to settle all disputes, and finally makes him its guarantor,alongside God himself.

It is by the authority invested in him as “the messenger of God” that Muhammadlater granted the protection of God to extramural protectorates. The new communitycould not remain unified without authority. The famous “authority verse” of the Qur»an,which is dated to the 622–25 period,82 probably addressed the faithful covenanters,using the equivalent phrase “O, you who trust/believe/are made sure [amanu].”83 Thiswould make its injunction, “Obey God and obey the messenger and those in authorityamong you, and if you dispute over something, refer it back to God and the messenger”(Q. 4:59–60), the reiteration and confirmation of the final article (Article 13) of theCovenant of Unity.84 That Muhammad’s authority, thus instituted, was never developedby him or in the Qur»an to provide constitutional foundations for the state is the greatestpuzzle in Islamic history, for which I offer a solution elsewhere.85

N O T E S

1R. Stephen Humphreys, Islamic History: A Framework of Enquiry (Princeton, N.J.: Princeton UniversityPress, 1991), 65–83; Michael Lecker, The “Constitution of Medina”: Muhammad’s First Legal Document(Princeton, N.J.: Darwin Press, 2004).

2Wellhausen uses the term in preference to “constitution” (Verfassung). Julius Wellhausen, “Muham-mads Gemeindeordnung von Medina,” in Skizzen und Vorarbeiten, 4 vols. (Berlin: Reimer, 1889), 4:65–83; W. Behn, ed. and trans., “Muhammad’s Constitution of Medina,” published as an excursus to A. J.Wensinck, Muhammad and the Jews of Medina (Freiburg, Germany: Klaus Schwarz Verlag, 1975), 128–38.

3Patricia Crone, Slaves on Horses: The Evolution of the Islamic Polity (Cambridge: Cambridge UniversityPress, 1980), 7.

4Reinhart Koselleck, Futures Past: On the Semantics of Historical Time, trans. Keith Tribe (Cambridge,Mass.: MIT Press, 1992).

5Max Weber, The Methodology of the Social Sciences, ed. Edward A. Shils and Henry A. Finch (Glencoe,Ill.: Free Press, 1949), 112.

6Muhammad Hamidullah, “Aqdam Dustur Musajjal fi-l-–Alam,” Islamic Scholars Conference 1 (1937):98–123; idem, The First Written Constitution in the World, 2nd ed. (Lahore, Pakistan: Sh. Muhammad Ashraf,1968), discussed in Lecker, Constitution of Medina, 1–2.

7R. B. Serjeant, “The ‘Constitution of Medina,’” Islamic Quarterly 8 (1964): 3–16; idem, “The SunnahJami–a, Pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and Translation of the DocumentsComprised in the So-called ‘Constitution of Medina,’” Bulletin of the School of Oriental and African Studies41 (1978): 1–41.

8Lecker, Constitution of Medina, 185.9Ibid., 183–85.

10Ibid., 3, 186–90; Moshe Gil, “The Constitution of Medina: A Reconsideration,” Israeli Oriental Studies4 (1974): 44–66.

11Lecker, Constitution of Medina, 3.12Estelle Whelan, “Forgotten Witness: Evidence for the Early Codification of the Qur»an,” Journal of

the American Oriental Society 118 (1998): 1–14. The “revisionist” argument that the Qur»an is a laterplagiarized composition is, by contrast, unconvincing. See Angelika Neuwirth, “Qur»an and History—ADisputed Relation: Some Reflections on Qur»anic History and History in the Qur»an,” Journal of Qur»anicStudies 5 (2003), esp. 1–11.


13Fred M. Donner, Narrative of Islamic Origins: The Beginning of Islamic Historical Writing (Princeton,N.J.: Darwin Press, 1998); idem, “The Qur»an in Recent Scholarship: Challenges and Desiderata,” in TheQur»an in Its Historical Context, ed. Gabriel S. Reynolds (London: Routledge, 2008), 42–43.

14A notable exception is the Indonesian reformist Nurcholish Madjid (d. 2005), who found in the CMthe source of inspiration for his Paramadina Foundation and advocacy of religious pluralism and democracy.See Andi Faisal Bakti, “Islam and Modernity: Nurcholish Madjid’s Interpretation of Civil Society, Pluralism,Secularization, and Democracy,” Asian Journal of Social Science 33 (2005): 492–95.

15See Saıd Amir Arjomand, “Islamic Constitutionalism,” Annual Review of Law and Social Science 3(2007): 115–40.

16See Chapter 1 of my forthcoming Constitutional History of the Islamic Middle East (University ofCalifornia Press).

17Some verses of the Qur»an can be taken as references to and confirmation of its provisions, however, andhave been so construed by commentators.

18F. M. Denny, “Umma in the Constitution of Medina,” Journal of Near Eastern Studies 36 (1977): 44, 52.19Saıd Amir Arjomand, “Revolution in Early Islam: The Rise of Islam as a Constitutive Revolution,”

Yearbook of the Sociology of Islam 7 (2006): 125–57.20Although the Meccan converts had been individuals, Medina witnessed the phenomenon of acceptance

of Islam by whole clans. See W. Montgomery Watt, Muhammad at Medina (Oxford: Oxford University Press,1956), 170–71.

21The text continues: “One man could be a Muslim and his father a polytheist, another, a Muslim andhis brother a polytheist.” Report from Bayhaqi reproduced in M. Lecker, “Waqidı’s Account of the Statusof the Jews of Medina: A Study of a Combined Report,” Journal of Near Eastern Studies 54 (1995): 31.This report is quoted in preference to that of Muhammad bin –Umar al-Waqidi, The Kitab al-Maghaza, ed.Marsden Jones (London: Oxford University Press, 1966), 1:184, which is cited by Wellhausen, “MuhammadsGemeindeordnung von Medina” (1975 translation), 128; and Serjeant, “The Sunnah Jami–a,” 2.

22My references are to CM, the Constitution of Medina, Ibn Ishaq’s text, as edited and line numbered byLecker in Constitution of Medina, 7–9, with emendations, where indicated, on the basis of Abu –Ubayd’s textas edited by Lecker, ibid., 19–20.

23Muhammad ibn Ishaq, Sirat Rasul Allah, ed. Ferdinand Wustenfeld (Gottingen, Dieterich, 1858–60),341; A. Guillaume, trans., The Life of Muhammad (London: Oxford University Press, 1955), 231, slightlymodified.

24Waqidi, Kitab al-Maghaza, 1:177.25Pace Lecker who argues (Constitution of Medina, Chapter 3) that none of these three was party to the

constitutional deeds on the somewhat flimsy distinction between references to the Jewish clans as h. ulafa»(allies) rather than mawalı (clients). I am inclined to think the clan of Qaynuqa»were a party to the pact, whichwould explain why the leader of the Arab patron clan of –Awf, –Abdallah bin Ubayy, dared grab Muhammadby the scruff of the neck and demand their safe conduct into exile. See Ibn Ishaq, Sirat Rasul Allah, 546; TheLife of Muhammad, 363. Lecker similarly makes too much of the distinction between muwada–a (truce), –ahd(pact), and –aqd (contract). Because Muhammad’s acts of settlement were something new, they were all ofthe above and yet none of them exactly, so our sources use various terms to refer to them. I argue that the clanof Qurayza was not originally included but was the new party added by the supplement.

26This early timing, implicit in Ibn Ishaq, is made explicit in the introductory opening of Abu –Ubaydal-Qasim bin Sallam’s version in his Kitab al-Amwal. See Lecker, Constitution of Medina, 19.

27Ibn Ishaq, Sirat Rasul Allah, 344–45; The Life of Muhammad, 234–35.28Elias Giannakis, “The Concept of Ummah,” Graeco-Arabica 2 (1982): 103; Mohammad Ali Amir-

Moezzi, La religion discrete. Croyances et pratiques spirituelles dans l’islam shi–ite (Paris: Vrin, 2006),39–40.

29The rule of inheritance was later abrogated by the Qur»an (Q.8.75 and/or Q.4.33, and/or Q.33.6). SeeW. M. Watt, “Mu»akhat,” in Encyclopedia of Islam (Leiden: E. J. Brill, 1993), 7:254.

30Amir Moezzi plausibly argues that the institution of brotherhood was embarrassing for the orthodoxy andwas systematically ignored in the Sunni sources because Muhammad chose –Ali as his own brother, thus alsomaking him his heir. Moezzi, La religion discrete, 40.

31Ibn Sa–d claims there were forty-five helpers, matching the number of emigrants, although he must haveincluded later brothers. Even this number is quite small. Muhammad ibn Sa–d, Kitab al-Tabaqat al-Kabir(Biographien), ed. Eduard Sachau (Leiden: E. J. Brill, 1917), 1.2:1.


32Ibn Ishaq, Sirat Rasul Allah, 552; The Life of Muhammad, 368.33Serjeant, “The Sunnah Jami–a,” 32.34Bayhaqi’s report as reproduced in Lecker, “Waqidı’s Account,” 32.35Lecker, Constitution of Medina, 75–80.36Muhammad’s paracletic epithet (Q. 61:6)37Ibn Sa–d, 1.1, 103–104. See the paragraph immediately following.38A. J. Wensinck, Muhammad and the Jews of Medina, trans. W. Behn (Freiburg: Klaus Schwarz Verlag,

1975), 39–44, 50; Saıd Amir Arjomand, “Islamic Apocalypticism in the Classical Period,” in The Encyclopediaof Apocalypticism, ed. Bernard McGinn (New York: Continuum, 1998), 2:238–83.

39A. T. Welch, “al-Kur’an,” Encyclopedia of Islam (Leiden: E. J. Brill, 1986), 5:403.40Denny, “Umma in the Constitution of Medina,” 45.41Uri Rubin, “The ‘Constitution of Medina.’ Some Notes,” Studia Islamica 52 (1985): 11.42Waqidi, Kitab al-Maghaza, 2:454–56.43Ibn Sa–d, Kitab al-Tabaqat, 2.1:51, 55.44Wellhausen, “Muhammads Gemeindeordnung von Medina,” 73.45Serjeant, “The Sunnah Jami–a,” 38.46Ibn Sa–d, Kitab al-Tabaqat, 2.1:56; J. M. Kister, “The Massacre of the Banu Qurayza,” Jerusalem Studies

in Arabic and Islam 8 (1986): 69.47Serjeant argued for the immediate recognition by the Muslims of the part here entitled the Covenant of

Unity as a constitutional act, identifying it as al-sunna al-jami–a (taken to mean the “Uniting Precedent”),which was accepted, alongside the Qur»an, as the basis of binding arbitration in the treaty of Siffin between–Ali and Mu»awiya in 656–57. The Siffin reference is probably anachronistic. More plausible and intriguing,however, is his identification of the deed with “the pact of God” (habl Allah) in Qur»an 3:101–04. Serjeant,“The Sunnah Jami–a,” 5–8, 16; idem, “Sunna, Qur»an, –Urf,” in Christian Toll and Jakob Skovgaard-Petersen,eds., Law and the Islamic World Past and Present (Copenhagen: Historisk-filosofiske Meddelelser 68, 1995),34–41. Whatever the merits of Serjeant’s arguments, the first section of the document is the act of foundationof the umma in Medina.

48Serjeant’s most ingenious finding is that the word mu»minın in the document does not have the commonmeaning of “believers” and derives not from iman (faith) but rather from aman (security), citing, inter alia, theevidence of the Qur»an (6:82). See Serjeant, “The ‘Constitution of Medina,’ ” 3–16; and “The Sunnah Jami–a,”12–15. The connotation of iman is there, but Serjeant shows convincingly that the term mu»minın cannot betaken to mean “believers” in our document and must mean those who subscribe to and are beneficiaries ofthe pact of security with Muhammad as the Prophet of God. It can therefore not be a synonym for Muslimand does not function as such in the text. The word “covenanter” conveys the legal aspect of the status ofmembers of the new community constructed by a pact of security with God. It does not, however, convey theinner dimension of faith in God as the surety to the pact, which was undoubtedly a double entendre intendedby Muhammad (Q. 13:28, 16:108). See M. M. Bravmann, The Spiritual Background of Early Islam (Leiden:E. J. Brill, 1972), 26–31. I am therefore translating mu»minın by two words: “faithful covenanters.” Thisseems preferable, despite the loss in parsimony, to leaving the term in Arabic, as Serjeant and Lecker do, orto translating it anachronistically as “believers,” as do most other interpreters.

49The emendation “reside with them” is added from Abu –Ubayd’s text, following the suggestion by Rubin,“The ‘Constitution of Medina,’” 9–10.

50I follow Lecker (Constitution of Medina, 99–102) in his emendation of rab–a to riba–a in CM 3–11 onthe basis of Abu –Ubayd’s text and Lecker’s translation of the term. Wherever there is broad disagreementamong translators, I indicate the one closest to mine.

51According to the custom, any member of the clan could extend protection on behalf of the clan as a whole.52See Watt, Muhammad, 222, translation.53See Lecker, Constitution of Medina, 118, translation: “the Jews who join us as clients.”54See Wellhausen’s translation as “einziger und allgemeiner.”55Lecker’s proposed alternative reading on the basis of what is obviously a manuscript-orthographic cor-

ruption of umma in an isolated version must be rejected; Lecker, Constitution of Medina, 139–47. It is strangethat, after his strict criticism of Serjeant’s many unwarranted emendations, he adduced such flimsy evidence.In any event, his speculative argument for particularistic grant of security (aman) to specific Jewish clans runscounter to the undeniable thrust of the generality and indivisibility of peace and security, without which therecould be no unified community (umma wahida).


56Gil’s reading of dın (religion) as dayn (debt) is implausible for at least two reasons: the clear religiousconnotation of the preceding term, umma, in the contemporary Arabic of the Qur»an and the occurrence ofdın in CM.56. Gil, “The Constitution of Medina,” 63.

57Lines 34–36 are made into one clause and translated in light of Lecker’s explanation that the BanuTha–laba was an Arab clan converted to Judaism, lines 35 and 36 being read as one line in the light of theidentification of Banu Shutayba as a subclan of the Tha–laba in Abu –Ubayd’s text. Lecker, Constitution ofMedina, 20, 31, 75–80.

58See Serjeant, “The Sunnah Jami–a,” 27, translation: “Observance of one’s undertaking eliminates treach-ery/breaking of treaties.”

59See Hamidullah, The First Written Constitution, 50, translation: “None of them shall go out (on militaryexpedition) except with the permission of Muhammad.”

60Abu –Ubayd’s text has the additional phrase “and support for the wronged.”61Lecker’s alternative reading is problematic; idem, Constitution of Medina, 171–72.62This line is missing from Abu –Ubayd’s text.63Serjeant, “The Sunnah Jami–a,” 4.64Wellhausen, “Muhammad’s Constitution of Medina,” 131.65Rubin, “The ‘Constitution of Medina,’” 12–13.66Lecker, Constitution of Medina, 86.67Waqidi, Kitab al-Maghaza, 1:19. When the title was later assumed by the second Caliph, –Umar (r. 634–

44), the distinction between mu»minın and muslimın had faded, and it came to mean, simply, the “Commanderof the Faithful.”

68Wellhausen, “Muhammads Gemeindeordnung von Medina,” 69.69Ibn Ishaq, Sirat Rasul Allah, 351; The Life of Muhammad, 239.70Ibn Sa–d, Kitab al-Tabaqat, 1.2:10.71Serjeant, “The Sunnah Jami–a,” 11–12.72According to one important tradition, this verse was revealed on the occasion of the Prophet’s decision

to accept poll tax from the Magians (Zoroastrians) rather than requiring their forced conversion. See MeirJacob Kister, “Social and Religious Concepts of Authority in Islam,” Jerusalem Studies in Arabic and Islam18 (1984): 89–91.

73I follow Ibn Sa–d (Kitab al-Tabaqat, 2.1:51) in considering the Qurayza as the subject of these verses.74Giannakis, “The Concept of Ummah,” 108.75Muhammad Hamidullah, “The Earliest Written Constitution of a State in the World: A Document of the

Time of the Prophet,” Majallat al-Azhar (September 1969): 13.76Eric R. Wolf, “The Social Organization of Mecca and the Origins of Islam,” Southwestern Journal of

Anthropology 7, no. 4 (1951): 147.77This qualification was used to nullify their rights in practice, fatally in the case of the clan of Qurayza.78Ibn Sa–d, Kitab al-Tabaqat, 1.2:9.79Watt, Muhammad, 144–46. In the year 626, he made a special arrangement with 400 men from the

Muzayna tribe, granting them the status of “emigrants” (muhajirun) within their own territories—whichmeant they did not have to join the jihad, thereby making an exception to coupling of hijra with jihad as acondition of Islam. See Wilferd Madelung, “Has the Hijra Come to an End?” Revue des Etudes Islamiques 54(1986): 231–32.

80Watt, Muhammad, 247.81Ibn Sa–d, Kitab al-Tabaqat, 2:28–29, 36–38.82Watt, Muhammad, 233.83The preceding verse, Q. 4:58, commands the return of the amanat to their owners. The term is commonly

translated as “deposits” but more likely means pledges, because aman can mean a pledge of security. Serjeant,“Sunna, Qur»an, –Urf,” 37.

84Ibid.85See my forthcoming Constitutional History of the Islamic Middle East.

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