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The Constitution of Medina: A Sociolegal Interpretation of Muhammad's Acts of
Foundation of the "Umma"

Author(s): Sad Amir Arjomand
Source: International Journal of Middle East Studies, Vol. 41, No. 4 (Nov., 2009), pp. 555575
Published by: Cambridge University Press
Stable URL: http://www.jstor.org/stable/40389306
Accessed: 21-11-2016 14:11 UTC
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Int. J. Middle East Stud. 41 (2009), 555-575. Printed in the United States of America
doi: 10. 1017/S0020743809990067
Said Amir Arjomand
THE CONSTITUTION OF MEDINA: A
SOCIOLEGAL INTERPRETATION OF
MUHAMMAD'S ACTS OF FOUNDATION

OF THE UMMA
One of the oldest extant documents in Islamic history records a se
by Muhammad after his migration (hijra) in 622 from Mecca to Ya
known as "the City [rnadma] of the Prophet." Marking the begin

era, the document comprising the deeds has been the subject of
of modern scholarship1 and is commonly called the "Constitution
some justification, although the first modern scholar who studied
19th century, Julius Wellhausen, more accurately described it as the

(Gemeindeordnung) of Medina.2 In 1889, Wellhausen highlighted t
which has been acknowledged by even the most skeptical of cont
critical" scholars, Patricia Crone, who thinks that, in Ibn Ishaq's Sir
a piece of solid rock in an accumulation of rubble."3
The significance of the text cannot be reduced to its antiquity, how
this significance varies from generation to generation. History i

the past can always be reread in the light of present concerns an
of expectations of the future.4 Medieval Muslim scholarship prim
Ishaq in seeing the document as "Muhammad's pact with the Jews
recognized it as an important text in public law. In fact, the text
my interpretation and translation is taken from a 9th-century treati
Ubayd's Kitab al-Amwal.

The constitutionalist reading of the document that accounts fo
modern scholarship as the Constitution of Medina (CM) acquires ne
the current widespread preoccupation of Muslims throughout the
constitutionalism. The agenda for research in the human sciences,
raphy, is set by the values of each epoch. As "the light of the gre
moves on," this research, as Max Weber puts it, "follows those st
able to give meaning and direction to its labors."5 This study of the
public law is accordingly guided by the prominence of a constitu
Islam among the values of our generation.
Said Amir Arjomand is a Distinguished Service Professor in the Department of Soc

of New York, Stony Brook, N.Y.; e-mail: said.arjomand@stonybrook.edu.
2009 Cambridge University Press 0020-7438/09 $15.00
556 Said Amir Arjomand

EARLIER SCHOLARSHIP AND THE CONTRIBUTION
OF THE PRESENT STUDY
Wellhausen was the first to assess the document's significance with

tional" insight derived from the constitutionalism of 19th-century
without undue presentism, however, labeling the legal document a

in preference to a "constitution." Muhammad Hamidullah similarly
alyzed the CM under the stimulus of 20th-century Islamic constit
it "the earliest written constitution of a state in the world."6 The wi
of the CM as "the constitution of a state" is not supported by the
recover Wellhausen's fundamental insight that the object of the charte
of a political community: the major constitutional issue for Muha
formation of a state but rather the settlement of the religious question
and significance of the CM accordingly stems from its laying the f

classic Muslim system of religious pluralism.
R. B. Serjeant's interpretation of the CM was not informed by any

stitutionalism but rather by parallels between 7th-century Arabia a
Arabian (and particularly Yemeni) tribal society and customs.7 His fu
was that the CM was a "pact of security" executed by Muhammad ac
Arabian custom between the Muslims and the inhabitants of Medina.

this insight, combined with Wellhausen's, is that Muhammad constit
community (umma) in Medina on the basis of a security pact betw

had either followed him from Mecca or converted to Islam in Medina and a section of
the inhabitants of Medina, both pagan and Jewish, who became their affiliates. Michael
Lecker, the most recent student of the CM, is basically antipathetic to any constitutional
interpretation. Not mentioning the main Jewish clans of Medina, in his opinion, makes
the 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 composite
document on the basis of internal evidence, but neither attempted to reconstruct its
component parts.9 Serjeant divided the document into eight components, but the formal
reasons for his division were not convincing and the substantive ones somewhat quirky
and eccentric. Against this arbitrary division, M. Gil and, following him, Lecker argue
that 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 accordingly
divides his translation and commentary into two separate chapters on "the treaty of the
mtfminrT and "the treaty of the Jews." This hardly suffices to bring to satisfactory
closure the issue of the composite nature of the CM.
I have divided the document into three separate deeds. The most important is the act
of foundation of a new unified community (umma) in Medina, which I call the Covenant
of Unity. This covenant was supplemented by two further constitutional settlements by
Muhammad. 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 second
part can in turn be subdivided, with reasonable probability, into a main deed, which I
call the Pact with the Jews of Medina, and a supplement to that pact. My hypothesis is
that 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 not
accept this further subdivision of the second part into two deeds.
What follows is an edited translation of the three constitutional deeds with analytical
subheadings and commentaries. The subheadings are frankly anachronistic, so I give
them in square brackets. They indicate the logic of the sociolegal interpretation of
the deeds as acts of constitutional legislation. My commentaries primarily draw on the
Qur3an as a contemporary historical source, accepting Estelle Whelan's convincing evidence and arguments for its early codification12 and Fred M. Donner's for the historicity
and stability of the Qur'anic text and its priority over the sTra literature.13 The early
biographies of the Prophet are used as a second source, as are a few crucial hadiths that
have passed modern critical scrutiny.
My sociolegal interpretation, in contrast to Serjeant's and Lecker's, follows the constitutionalist reading of the CM and is a study in historical jurisprudence. It is a rereading
of the pact of security that served as the foundational act of Muhammad's own umma in
Medina, with the hindsight of a new era obsessed by the relation between Islam and the
state. That so little attention is paid to this important document in the massive ideological
literature on the Islamic state is surely proof of the poverty of Muslims ' current historical
understanding.14 The works of modern scholarship on the CM discussed previously have
too little sociolegal coherence to be accessible to those engaged in the public debate on
Islam and the constitutional order.
If the significance of the CM is lost in the current constitutional debate on Islamic

constitutionalism, we must attribute the loss to the absence of a constitutional history of
the Muslim world rather than to "objective" institutional developments in Islamic history.
The historical jurisprudence of von Savigny, Gierke, and Maitland in the 19th century was
not just a recording of objective facts but also constitutive of the idea and reality of public
and constitutional law in Western Europe. It constructed the historical-political reality of
modern constitutionalism that endowed such medieval legal documents as Magna Carta
with 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 a
similar historical reality that could supply badly needed facts for the debate on Islamic
constitutionalism. My intention is not to suggest that the CM should serve as a blueprint
for 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 give
it a historical basis by reading this most significant early document systematically as
proto-Islamic public law. Neither Islamic jurisprudence ifiqh) nor the modern academic
study of Islamic law can meet the challenge of guiding the constitutional development
of the Muslim world. What is needed is a new discipline of historical jurisprudence that
can begin nowhere better than with the historic act of foundation of the Muslim umma
in Medina.
The tripartite CM comprises the core of what we may consider Muhammad's constitutional legislation on his own authority as the Prophet of God. This corpus includes his
institution 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 the
conquest of Mecca a few years later that incorporated Arab tribes into the Muslim polity
beyond Medina or established extramural Jewish and Christian protectorates.16 This

corpus is distinct from what Muhammad transmitted as the commandments of God in

the Qur3an, which contains almost nothing that bears on state formation or public and
constitutional law.17
Antiquarian readers who find the long century of the constitutionalist reading of this
document a distasteful aberration can conveniently ignore the terminological scaffolding
in square brackets and focus instead on the proposed correlation of the three parts of the
composite text with three plausible historical contexts: the initial stages of the creation of
a confederation for revolutionary struggle in the path of God, the institution of religious
pluralism in Islam, and the hypothesis on the pact with Banu Qurayza. They may also
consider the explanations, in passing, of the formula used by Muhammad during the
ritual of sacrifice and of the first use of amir al-mu^minn in the Medinan period.
THE HISTORICAL SETTING
The idea of a community designated for salvation through a proph
ready strongly present in the Meccan verses of the QurW8 and ref
conception of the new community he wanted to create. Such a comm
could not be constituted in Arabia without a revolution, because it
transformation of the politically segmented tribal society and the stru
that held apart its segments, the clans.19 The construction of a new
impossible in Muhammad's own city of Mecca because of the oppositi

leaders, and he moved to Yathrib. In Medina, he had to take cogniza
clans as kinship groups and their tribal solidarities.20 According to a m

early report,
When Muhammad arrived in Medina, its inhabitants were a mixed lot. They consisted of the
Muslims united by the mission (dacwa) of the Messenger of God, the polytheists who worshiped
idols, and the Jews who were the armored people of the forts and the allies (hulaf^) of the tribes
of 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 structure
of Yathrib and were somewhat mixed because they were organized as clans, with
Muhammad's own emigrating followers reconstituted as the clan of "the emigrants
from the Quraysh" (CM.3).22 Shortly after his arrival in Medina in 622, "the Messenger
of God wrote a document (kitb) between the emigrants (muhjirn) and the helpers
(ansar), and in it he made a peace and a covenant with the Jews, establishing them in
their religion and possessions, and stated the reciprocal obligations."23 The Jews are
given even greater prominence in Waqidi's24 and subsequent Muslim commentators'
reference to this agreement as a covenant (cahd) and a pact of mutual security (amari)
between Muhammad and the Jews of Medina. Waqidi, however, does not give the text
of 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 is
secondary. The Jews are only once mentioned explicitly in the first part; it is clear from
the rest of the text that the Jewish clans were clients of the Aws and Khazraj tribes' Arab
clans and were legally represented by their Arab patron clans and allies. The deed in
question probably did not include one or more of the three wealthiest Jewish clans with
fortification 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 his
first year in Medina, 622.26 Ibn Ishaq places the deed immediately before Muhammad's
first acts of legislation for his Muslim followers in Medina, namely, the institution of
brotherhood (mu'akhat) between the emigrants and the helpers.27 The rite of bonding
men into brotherhood through Muhammad's mixing their blood dates from before migration to Medina and continued through the rest of his life.28 This particular instance of
group fraternization between the emigrants and their Yathribite hosts should be consid-
ered a constitutional act, however, especially because its legal implications, including
mutual inheritance, were spelled out.29 Were there an extant text of the deed, I would have
included it in the CM.30 Furthermore, the conjunction is important for understanding the
first 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 (less
than twenty)31 suggests that the Muslims were a small minority among the inhabitants of
Medina, whose great majority were Jews and polytheists. The Jews and polytheists were
each mentioned only once explicitly, because they joined the new community mostly as
clients or clansmen of the Muslim helpers.
Further constitutional deeds by Muhammad followed very soon thereafter. Muhammad's early revolutionary struggle was on two fronts: against the Quraysh oligarchs in
Mecca and against his opponents in Medina. The half- Jewish poet Kab al-Ashraf was
the key link between the two groups, and Muhammad had him assassinated in 625, a
few months after the Battle of Badr against the Quraysh (624). The murder of Ka'b
al-Ashraf "cast terror among the Jews, and there was not a Jew in Medina who did
not fear for his life."32 Some Jewish leaders approached Muhammad, and he seized the
opportunity to conclude a pact with them that not only reaffirmed the status of Jews as
members 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 Messenger
of God called on them to conclude a written agreement between himself, them, and the
Muslims; and the Prophet wrote between him and them and all the Muslims a treaty/deed
(sahifa) . . . After the Prophet's death the treaty was kept with 4Al b. Ab Tlib."34
The deed in question is very probably the second section of the text (CM. 27-5 2), the
Pact with the Jews of Medina. Six Jewish groups were now specifically mentioned as
clients of their respective Arab patron clans, all parties to the pact. The Jewish clan of
Thaclaba, presumably the most important, was named a party to the pact not only in its
own right but also as the representative of its client subclan, Jafna, and of an Arab client
clan.35 Two years earlier, Muhammad could muster very few native clan leaders for the
ceremony of institution of brotherhood. Now that he was master of the city, many more
Jewish groups joined his confederation.

The pact with the Jews brought the question of religion to the forefront of constitutional
settlement. By this time, the direction of prayer, al-qibla al-tacabbudiyya, had been
changed from Jerusalem to Mecca, the house founded by Abraham. Because Mecca
remained under Muhammad's Quraysh enemies, however, Islam urgently needed its own
sacred place, a sacred enclave in the Arabian tradition, and several ancient prophecies
concerning Medina circulated. According to one attributed to a certain Samuel, "This
is the city whereto will emigrate the prophet [nabiy] from the children of Ishmael. His
birthplace is Mecca, his name Ahmad,36 and this his House of Migration [dr al-hijra]"
Another predicted more ominously that "Ahmad the prophet will arise in the land of

the Qurayza [ard al-qarazV^1 However, the Jews of Medina in general did not accept
Muhammad as the gentile prophet of the last days (Q. 2:85),38 provoking the Qur'an's
declaration that "Abraham was neither a Jew nor a Christian; but he was a Muslim and
a hanf [pure (Arab) monotheist]" (Q. 3:60). The relation between the two Abrahamic
religions was thus badly in need of doctrinal and legal definition.
The issue was doctrinally addressed in the Qur3an. The complaint that Muhammad's
followers 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 that
Muhammad began compiling the recitation (qur^n) of divine revelation into a written
scripture, a book and criterion of differentiation ifurqn) of the final revelation. At this
. time, too, the Qur'an introduced the plural "scriptures/books" (kutub) in two creedal
statements.39 Muhammad also used the opportunity of contracting the pact with the
Jews to settle these two religious issues constitutionally. Unlike polytheism, the religion
of the Jews was recognized in the constitution of the wnma, and the inner part of Medina
was declared a sacred enclave (harm) for the faithful covenanters,40 just as Abraham
had reportedly declared Mecca a sacred enclave.41
The lasting effect of the constitutional recognition of the Jews' religion was the institution of religious pluralism in Islam. Muhammad's constitutional settlement concerning
the Jewish clans of Medina, by contrast, did not have any lasting effect. Already before
this pact of 625, he had expelled one of the three wealthy and armed Jewish clans, the
Qaynuqac, from their fort, and at the beginning of the following year (626) he proceeded
to expropriate and expel the Nadir; nor did the last wealthy and armed Jewish clan, the
Qurayza, remain for long. The Qurayza did not react to the elimination of their armed
rival, the Nadir, which increased their strategic importance in the defense of Medina as
the only armed Jewish clan living in their own fort. Several reports on the Battle of the
Trench in 627 mention Muhammad's pact or contract - caqd in Waqidi,42 cahd and, less
conveniently, walthu min cahdin in Ibn Sacd43 - with the Qurayza.
Given the increased strategic importance of the Qurayza and their fortress after the
elimination of the Nadir, and given Muhammad's concern with the defense of Medina
during the intensification of the war with the Quraysh of Mecca preceding the Battle
of 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 repetition
of "the Jews of the Aws" (already mentioned in CM.23) on line 57 strongly suggests
that 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 Jews
of 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 with
the Qurayza and have accordingly edited it as the Supplement to the Pact with the Jews
on the Defense of the City. If this interpretation is correct, the supplement was added
between 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 repelling
the Quraysh in the Battle of the Trench. The accusation was confirmed by the Qur3an
(8:57-60), where Muhammad is told to make an example of those who break their
agreement: "And if you fear treachery from them, cancel the peace, for God does not
like the treacherous people." We should assume that the supplement was invoked when
Muhammad 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 the
dying leader of their Arab patron clan, Sacd b. Mucadh.46
THE INTERNAL STRUCTURE AND LEGAL LOGIC OF THE

CONSTITUTION OF MEDINA TEXT
In addition to the historical evidence for the existence of three sep
deeds, my division of the CM text is supported by some formal featur
and, more important, by the legal logic of each section or its cohere
The critical division is between the first two deeds. Little needs to
legal interpretation if my hypothesis is incorrect that the suppleme

concluded with the clan of Qurayza. It could still be a codicil on the
to the earlier pact executed at more or less the same time.
The formal marking of each deed at the end is a sort of theocra
concluding lines of the first two make God and Muhammad the arbit
that may arise among the parties to the deed. If the last deed is essent
and a supplement added to the earlier deed, it is understandable tha
seal, the provision for judicial arbitration in the earlier deed would
benediction of those who observe the pact of God and his messenge
The next differentiating formal feature concerns identification of

deeds. In the Covenant of Unity, the contracting parties are the fai
mentioned in virtually every article, and the Muslims, divided int
native clans of the tribes of Khazraj and Aws and one of the emigra
of Quraysh. The Jews and the polytheists appear incidentally as dep
clans. The pact and its supplement, by contrast, formally identify the
as "the parties to this deed" (ahi hdhihi al-sahfa).

As for considerations of legal logic, each deed is a coherent legal
subject. The Covenant of Unity is simultaneously an act of foundatio

of faithful covenanters (mu^mimn), which defines the relations amon
of confederation between them and the Muslims of Quraysh and Yathr
the first aspect, the term "faithful covenanters" appears or is referred

every line but the last. Regarding the second aspect, the term appears
to the Muslims of Quraysh and Yathrib in the first line and again af
confederate clans into which the Muslims of Quraysh and Yathrib ar

The second deed, the Pact with the Jews of Medina, aims to incl
new Jewish groups into the community constitution under the prot
it coheres around the constitutional regulation of religion. Its insti
pluralism and sanctuary can explain why "faithful covenanters" (mu

spicuous and occurs incidentally and only at the very beginning (lin
to link the two constitutional acts by affirming Jews as members o
(whose confederate structure had already been constituted by the f
might expect mu'minm as the counterpart to the Jews if it were t

covenant, we find the term "Muslims" instead (lines 28, 44). This
religious focus of the deed (see commentary on Article 15, which f

The fight (qitl) in the path of God is addressed in all three acts that
The defense of Medina and the war against the Quraysh is, however, a

in the previous two acts but becomes the focus of the third. The supplement coheres
around 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 in
the war effort, therefore, is not "Muslims" but "faithful covenanters" of the confederate
community 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 by
Muhammad 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.l)
This is a document written by Muhammad the Prophet (nabiy) between the faithful covenanters
[under God's security] (mu'minmf* and the Muslims from the Quraysh and Yathrib, and those
who 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 whida) apart from other people.
[Article 3. Components of the Community, their Organization and Responsibilities] (CM.3-1 1)
[3.a] The emigrants of Quraysh keep to their own tribal organization and leadership,50 paying
their blood money jointly among themselves and ransoming their prisoners in accordance to what
is customary (bi-l-ma'riif), equitably shared among the faithful covenanters.

[3.b] The clans of Awf, Sacida, the Harith, Jusham, the Najjar, cAmr b. cAwf, the Nabit, and the
Aws keep to their own tribal organization and leadership, paying their blood money jointly among
themselves at the previous rates [under paganism], and each group ransoming its prisoners in
accordance 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 without
customary protection regarding ransom or blood money.
[4.b] And no faithful covenanter shall make any alliance with the client (mawla) of another
covenanter 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 those
who act rebelliously or exact gifts unjustly or commit acts of treachery or cause dissension and
corruption 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 support
an 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 [th 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 of
outsiders.52
[8.b] The Jews who follows us as clients are entitled to support and are granted equal rights; they
shall 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 make
peace apart from other covenanters in fighting (qitl) in the path of God, and that only as a just
and 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 to
their 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 a
person 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 upon
proof, 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 from
which they cannot be absolved.

[12.c] It is not lawful for any faithful covenanter who has affirmed what is in this deed (sahlfa) and
puts 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 no
repentance 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 at
war.
[Article 15. Religious Tolerance] (CM.28-37)

[15. a] The Jews of the clan of cAwf are a community (umma) with the faithful covenanters,55
Jews having their religion (din) and the Muslims their religion,56 their clients and their pers
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 cAwf with the Jews of the clans of
Najjar, Harith, Sacida, Jusham, and the Aws.

[15.c] It is likewise the same as the Jews of the clan of cAwf with the Jews belonging to
clan of Thaclaba, except for any wrongdoer or traitor who brings perdition upon himself and
household. As the Jafna is a subclan of Thaclaba, it is treated as the latter; it is the same with
clan of al-Shutayba as with Jews of the clan of cAwf ,57
[15.d] Let there be observance [of this] pact and not treachery.58
[Article 16. Permission for Military Engagement] (CM.38-40)

[ 1 6.a] The clients of Tha claba 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, unl
grievously 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 {ahi hadhihi
al-sahifa).
[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 (harm) for [the protection of] the parties to this
deed.
[Article 22. Conditions of Protection within the Sanctuary] (CM.50-51)

[22.a] The protected person (jr) 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 ifasd) should
be 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 faithful
covenanters when similarly called upon, except for those who are at war for religion {din). Each
people 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 parties
to 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 against
himself. 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 {kitb) offers no protection to the wrongdoer and the criminal.
[29.b] Whoever leaves the precinct of the [Medina] sanctuary and whoever remains within it is
covered 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 messenger of God.62 The most worthy of those who observe this deed are the righteous and the
sincere.
SOCIOLEGAL COMMENTARY
Article 1
Taking mu^minn (faithful covenanters) to refer to all those who e
protection of God by virtue of the covenant hereby executed by
understand the logic of their subsequent division, in Article 3, into

of the new confederate community irrespective of Islam. The relatively modest status of
Muhammad at this stage of his career is evident in the reference to him as "Muhammad
the Prophet" here, and simply as Muhammad in the concluding Article 13. Because only
the Muslims fully accepted his charismatic authority, Muhammad predominantly relied
on his traditional authority as the invited judge-arbiter (hakam) of the Arab clans of
Yathrib. 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 the
very act of writing the covenant, which made him a unifier (mujammic) 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. As
the subsequent articles make clear, it is a confederate community of clans comprising

members from all three groups of inhabitants of Medina: the new Muslim settlers who
had emigrated with Muhammad, their Arab hosts who had become Muslims, and the
polytheists in their federated clans and their Jewish client clans and allies. "The Muslims
from the Quraysh and Yathrib" (CM. 1 ) were thus the soul of the community and destined
to turn it into a community of believers. It was not only that the pact extended the
legal protection enjoyed by clan members to tribally unattached Arab (Article 4.a) and
Jewish (Article 8.b) individuals who joined the community by converting to Islam. More
fundamentally, as Wellhausen put it,
By keeping the believers within the organization of their clans, they became not only the bond
which united the clans, but also the leaven which in time was to influence the rest of them. In
the beginning, the umma was a rather heterogeneous political entity; but since the Muslims were
its soul, this entity naturally tended to create a unity of faith and was strengthened on account of
this.64
The Qur'an fostered this tendency by affirming the constitution of the community no
less than nine times with the very same wording,65 most notably, "This community of
yours is a single community {umma whida), 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 confederation
of clans, eight existing ones and one newly constituted, "the emigrants of Quraysh." The
provision of ransom for its members and of blood money for their victims remained a
primary obligation according to pagan customary law, except for the newly constituted
clan of emigrants, which did not exist under paganism (3.a). Custom (al-ma'mf) and
customary blood money rates were explicitly confirmed.
Articles 4 and 8
Articles 4 and 8 created a new contractual solidarity among the faithful covenanters and
superimposed it on their existing clan solidarity and its extension through clienthood.

The customary law of clienthood was allowed within the community but restricted
beyond it. I take Clause 4.a (CM. 12) to refer to individuals in financial need who
cannot draw on their clan for customary assistance, and Clause 8.b (CM. 18) to include
Jewish individuals who joined the community. As Lecker argues, the Jews of the named
Arab 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 whom
customary 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 enforcement
against internal enemies while Article 6 draws the legal boundaries of the new community
to 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 with
meaning, was used or coined at this stage because there were polytheists among the
confederates of the umma. Much later, partly for reasons discussed in the commentary on
Article 1 1 and in the conclusion, the term came to mean the denier of Islam, comprising
the 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 faithful
covenanter as a member of the community under God's protection is entitled to extend
it to others through the customary institution of ijra (making one into a neighbor).
Covenantal solidarity is given a powerful new dimension as a result of the protection of
God over the community and its individual members. The condition of the emigrants
from the Quraysh who had followed Muhammad is generalized to all faithful covenanters, thereby tending toward displacing, desacralizing, and subordinating the old ties of
kinship: "Verily, they who have believed and fled their homes and spent their substance
for 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 of
the generality and indivisibility of internal peace and security in Article 7, it declares
external peacemaking by the united faithful covenanters indivisible. Second, it endows
the new community with a divine purpose: revolutionary struggle and warfare in the
path 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 in
the new community. An important indication of the immediate implementation of the

constitutionalized holy warfare is Muhammad's grant of the title of "commander of the
faithful covenanters" (amr al-mu^minn) to his cousin, cAbdallah bin Jahsh, for leading

eight or thirteen covenanters in the raid of Nakhla in 623 that preceded even the first
major battle, the Badr.67
Article 11
Article 1 1 completes the drawing of the legal boundaries of the community in Article
6 by excluding the Quraysh of Mecca, whom Muhammad and the emigrants had fled
and were fighting, from the divine protection of the community and assistance from any
of its members. What is particularly significant about Article 1 1 is that it forbids the
confederate polytheists among the covenanters of the unified community from extending
customary protections to the Qurayshite enemies of Muhammad. The contrast between

the 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 proof
that there were confederate pagan members in the first umma, a fact anachronistically
even more disconcerting than the inclusion of the Jews.68
Article 12
This article largely removes blood revenge from the customary jurisdiction of the clan
and converts it into capital punishment whose execution is entrusted to the faithful
covenanters as a collective body (12.a-b). The last clause (12.c) is significant for
explicitly requiring loyalty to the constitutional deed and, even more so, for implying that the belief in the Last Day and the Day of Resurrection, invoked in sanction
against disloyalty, was commonly shared by the three groups of faithful covenanters.
This required a religious concession from the polytheist confederates. According to Ibn
Ishaq, some of them (the so-called "hypocrites") continued to deny resurrection even
later, 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 are
undoubtedly comprised in the jurisdiction. Muhammad proceeded with the institution

of his judicial authority by holding his court hearings in his newly built mosque and
regularizing the procedure of taking oaths beside the pulpit (minbar).10
Article 14
The imposition of the war levy (nafaqa) upon the Jews for the duration of warfare
against the Quraysh of Mecca must have been Muhammad's condition for assuring Jews
of protection of the law and tolerance of their religion in ensuing articles. As we would
expect, its imposition met with some opposition. Serjeant suggests that the group that
became an organized opposition to Muhammad in Medina and was called the munfiqn
("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 an
interesting 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 critical
importance for the integration of the Jewish clients of the confederates from the Aws
and Khazraj and had far-reaching consequences. It granted the named Jewish clans
protection of the law and religious tolerance (extended by Article 16 to the Jewish clan
of Thaclaba and its dependents). The unified umma was now a confederation of the
clans of the covenant that added explicit recognition of religious tolerance for the Jewish
clans to their internal autonomy.
The article marks the institution of religious pluralism in Islam, which later developed
into the recognition of "those to whom we have given the book" (Q. 2:121; 6:21, 1 14;
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 endorsed
in 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 the
confederates of the unified community. In fact, in the last years of his life, Muhammad
explicitly denied religious freedom to Arab polytheists. However, already at this time
in Medina, Qur'anic revelation formulates the policy for the integration of Jews as
monotheist 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 we
associate nothing with him [as do the polytheists], and that none of us take others as
Lords beside God" (emphasis added) (Q. 3:64). Muhammad's frustration at the rejection
of this rapprochement by the clan of Qurayza, who sided with the Quraysh polytheists in
627, 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 their
fortresses and cast terror in their hearts; some you slew, some you made captives. And
he bequeathed upon you their lands, their habitations, and their possessions, and a land
you never trod"73 (Q. 33:27-28).
Article 17
Article 17 contains two of the most obscure lines of the pact. It allows retaliation for
wounds but forbids murder, unless the obscurity is the result of reference to particular
instances unknown to us.
Article 19
Article 19 reaffirms the war levy as a public contribution by all the faithful covenanters to
achieve the general goal of the new community, payable by Muslims and Jews separately.
The article also seeks to strengthen contractual solidarity among the faithful covenanters
by 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 own
actions 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 (haram), into Islam. The hitherto secular inner city
of Medina is declared a sacred enclave. A number of Qur'anic verses reflecting the
Medinan situation present the umma of Abraham as the prototype of Muhammad's
umma.74 Because the house of God built by Abraham was under control of his Quray shite
enemies, the best Muhammad could do was to declare Medina a sacred enclave, just as
Abraham had purportedly declared Mecca a sacred enclave. According to a 14th-century
history of Medina, Muhammad ordered pillars in different directions to be erected to

mark the limits of the city as the sacred enclave (dar al-hijra).15 Upon the conquest of
Mecca, the institution of hajj around its sanctuary, together with sacrifice, was similarly
incorporated into Islam in the Qur?an (22:25-37).
Article 22
In Article 22, the protection offered the Medinan by the institution of the sanctuary
could be extended by each of them according to the custom of ijra (making one a
neighbor), excluding criminals (Clause 22.a). The extension of such protection to a

woman, 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 of
God.
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 as
the purpose.
Article 26
Article 26 assigns the war tasks and gives each of the parties the right to sue for peace but
with each other's consent. War for religion, however, is the very significant exception to
peace 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 move
toward transforming the pagan cult of vengeance into holy warfare. The covenanters
become "each other's avengers of blood in the war path of God."76

Anide 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 leaving
Medina, presumably for military sorties (Clause 29.b) but excludes criminals.
Article 30
This benediction concluding the supplement differs significantly from the concluding
articles of the first two deeds by referring to its executor not simply as "Muhammad" but
rather as "Muhammad, the messenger of God" - and even more significantly by making
him the guarantor of the pact alongside God. He was no longer the newcomer to the
city 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 of
Muhammad's umma. Each clan kept "its leadership and organization," joint payment of
blood monies, and collective responsibility for ransoming its prisoners. The emigrants of
Quraysh were constituted into a clan alongside those of the Aws and Khazraj. Individuals
who lost the protection of their tribes by joining the united community were beneficiaries
of the entirely novel contractual solidarity, protected by its security under God but
compensated according to the customary blood money and ransom rates; the Jews
joining it were assured parity in this universalist respect. All the faithful covenanters with
Muhammad (mu^minm) 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 covenanter
was forbidden to kill another in retaliation for an infidel (among his kinsmen), and
the united community was given collective responsibility for the punishment of crimes
against its members and for treason. The inner part of Medina was declared the sacred
enclave of the faithful covenanter's sanctuary, on the Abrahamic precedent, and a pact
of tolerance allowed Jewish covenanters of the united umma to have their religion, as the
Muslims had theirs, as long as they paid the war levy and refrained from treason.77 Last
but not least, Muhammad made constitutional provisions for the revolutionary struggle
in the path of God.
SUBSEQUENT CONSTITUTIONAL DEVELOPMENTS
As the founder of a world religion, Muhammad did not neglect the ritual reinf
his constitutional settlement in Medina. He used the Abrahamic annual ritual of sacrifice
as an occasion to celebrate the unity of the umma. Muhammad offered God in sacrifice
one ram for himself and his family and a separate one in the name "of my community
in unity [ummatjamican] who acknowledge Thy oneness and my Messengership."78

As Muhammad's power grew in Medina, Arab tribes in the surrounding deserts could
put themselves under the protection of God and his messenger without professing Islam.
In this way, Muhammad created an intertribal security system, a Pax Islamica, around
the growing polity in Medina. Pax Islamica had a religious kernel: it was a system
based on "the security of God and his messenger." As Muhammad grew stronger, he
demanded Islam from prospective allies brought under God's protection but continued
to make purely political alliances with distant and powerful tribes, which submitted to
Pax Islamica based on Arab norms of tribal alliance.79 The umma was not a suitable
term to apply to this confederate polity, and as Watt points out, it no longer appears
in the Qur'an or Muhammad's treaties.80 Nevertheless, the CM shaped constitutional
developments in the Islamic polity of unified Arabia in the last years of Muhammad's
life, and it shaped the polity of the Muslim empire of conquest after his death. Religious
pluralism, in particular, stemming from the fundamental conception of Islam as the

restoration of the pure monotheism of Abraham, survived intact as a constitutional
principle.
After the conquest of Mecca in 630, Muhammad could dispense with this flexible
tribal 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 mean
Islam (submission to the one God). Muhammad, however, not only continued but also
further constitutionalized the religious pluralism of the second part of the CM in a
series of pacts with autonomous Christian and Jewish polities brought to submission
by 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 few
small Jewish protectorates with pacts similar to the prototypical one with the Jews of
Medina.81
CONCLUSION
Islam grew in the confederate community, the Muslims being its a

so much so that the original distinction between faithful covenanter
Muslims became increasingly blurred and finally disappeared. Mu'min
believers whose faith in God assured them of inner security. The um
of Muhammad was thus brought fully in line with its earliest concept
verses of the Qur'an as the new community of believers whose salvat
Islam. When the term umma regained currency after the death of the P
it no longer meant the unified political community of Medina but th

believers. Each umma was now a community of salvation constituted
who had brought it divine guidance. The Jews and Christians were th
and Jesus, respectively, and were now excluded from the umma of
unified community (umma whida) of the faithful covenanters was
history.
The general peace and security of God, as stipulated in the CM, eliminated the
legitimacy of violence by politically autonomous segments of Arabian tribal society. The
near monopoly of the legitimate internal and external use of violence was in principle
invested 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 as
the CM, it is striking that the constitution begins with "Muhammad the Prophet" as the
executor of the covenant of foundation of the umma, then invests him with authority to
interpret 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 Muhammad
later granted the protection of God to extramural protectorates. The new community
could 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 [manu]"*3 This
would make its injunction, "Obey God and obey the messenger and those in authority
among 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 the
Covenant of Unity.84 That Muhammad's authority, thus instituted, was never developed
by him or in the Qur'an to provide constitutional foundations for the state is the greatest
puzzle in Islamic history, for which I offer a solution elsewhere.85
NOTES
]R. Stephen Humphreys, Islamic History: A Framework of Enquiry (Princeton, N.J.: Prince
Press, 1991), 65-83; Michael Lecker, The "Constitution of Medina": Muhammad's First L
(Princeton, N.J.: Darwin Press, 2004).
2 Wellhausen uses the term in preference to "constitution" (Verfassung). Julius Wellhaus
mads Gemeindeordnung von Medina," in Skizzen und Vorarbeiten, 4 vols. (Berlin: Reim
83; W. Behn, ed. and trans., "Muhammad's Constitution of Medina," published as an ex
Wensinck, Muhammad and the Jews of Medina (Freiburg, Germany: Klaus Schwarz Verl
38.
3 Patricia Crone, Slaves on Horses: The Evolution of the Islamic Polity (Cambridge: Cambridge University
Press, 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,
111.: Free Press, 1949), 112.
6Muhammad Hamidullah, "Aqdam Dustur Musajjal fi-l-cAlam," 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 Sunnah
Jmica, Pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and Translation of the Documents
Comprised in the So-called 'Constitution of Medina,'" Bulletin of the School of Oriental and African Studies
41 (1978): 1-41.
8 Lecker, Constitution of Medina, 185.
9Ibid., 183-85.
10Ibid., 3, 186-90; Moshe Gil, "The Constitution of Medina: A Reconsideration," Israeli Oriental Studies
4 (1974): 44-66.
11 Lecker, Constitution of Medina, 3.
12Estelle Whelan, "Forgotten Witness: Evidence for the Early Codification of the Qur5an," Journal of
the American Oriental Society 118 (1998): 1-14. The "revisionist" argument that the Qur3an is a later
plagiarized composition is, by contrast, unconvincing. See Angelika Neuwirth, "Qur'an and History - A
Disputed Relation: Some Reflections on Qur3anic History and History in the Qur5an," Journal of Quranic
Studies 5 (2003), esp. 1-11.

13 Fred M. Donner, Narrative of Islamic Origins: The Beginning of Islamic Historical Writing (Princeton,
N.J.: Darwin Press, 1998); idem, "The Qur3an in Recent Scholarship: Challenges and Desiderata," in The
Qurân in Its Historical Context, ed. Gabriel S. Reynolds (London: Routledge, 2008), 42^3.
14A notable exception is the Indonesian reformist Nurcholish Madjid (d. 2005), who found in the CM
the 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.
15 See Said Amir Arjomand, "Islamic Constitutionalism," Annual Review of Law and Social Science 3
(2007): 115-40.
16 See Chapter 1 of my forthcoming Constitutional History of the Islamic Middle East (University of
California Press).
17 Some verses of the Qur3an can be taken as references to and confirmation of its provisions, however, and
have been so construed by commentators.
18F. M. Denny, "Umma in the Constitution of Medina," Journal of Near Eastern Studies 36 (1977): 44, 52.
19 Said Amir Arjomand, "Revolution in Early Islam: The Rise of Islam as a Constitutive Revolution,"
Yearbook of the Sociology of Islam 1 (2006): 125-57.
20 Although 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.
21 The text continues: "One man could be a Muslim and his father a polytheist, another, a Muslim and
his brother a polytheist." Report from Bayhaqi reproduced in M. Lecker, "Waqid's Account of the Status
of 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 cUmar al-Waqidi, The Kitab al-Maghaza, ed.
Marsden Jones (London: Oxford University Press, 1966), 1:184, which is cited by Wellhausen, "Muhammads
Gemeindeordnung von Medina" (1975 translation), 128; and Serjeant, "The Sunnah Jmica" 2.
22My references are to CM, the Constitution of Medina, Ibn Ishaq's text, as edited and line numbered by
Lecker in Constitution of Medina, 7-9, with emendations, where indicated, on the basis of Abu cUbayd's text
as edited by Lecker, ibid., 19-20.
23 Muhammad ibn Ishaq, Sirat Rasul Allah, ed. Ferdinand Wstenfeld (Gttingen, Dieterich, 1858-60),
341; A. Guillaume, trans., The Life of Muhammad (London: Oxford University Press, 1955), 231, slightly
modified.
Zi+Waqidi, Kitab al-Maghaza, 1 : 177.
^Pace 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 hulafa*
(allies) rather than mawl (clients). I am inclined to think the clan of Qaynuqa3 were a party to the pact, which
would explain why the leader of the Arab patron clan of c Awf , c Abdallah bin Ubayy, dared grab Muhammad
by the scruff of the neck and demand their safe conduct into exile. See Ibn Ishaq, Sirat Rasul Allah, 546; The
Life of Muhammad, 363. Lecker similarly makes too much of the distinction between muwdaca (truce), âhd
(pact), and caqd (contract). Because Muhammad's acts of settlement were something new, they were all of
the above and yet none of them exactly, so our sources use various terms to refer to them. I argue that the clan
of 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 cUbayd
al-Oasim bin Sallam's version in his Kitab al-Amwl. See Lecker, Constitution of Medina, 19.
27 Ibn 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 AmirMoezzi, La religion discrte. Croyances et pratiques spirituelles dans l'islam shicite (Paris: Vrin, 2006),
39-40.
29The rule of inheritance was later abrogated by the Qur3an (Q.8.75 and/or Q.4.33, and/or Q.33.6). See
W. M. Watt, "Mu'akhat," in Encyclopedia of Islam (Leiden: E. J. Brill, 1993), 7:254.
30 Amir Moezzi plausibly argues that the institution of brotherhood was embarrassing for the orthodoxy and
was systematically ignored in the Sunni sources because Muhammad chose cAli as his own brother, thus also
making him his heir. Moezzi, La religion discrte, 40.
31 Ibn Sacd claims there were forty-five helpers, matching the number of emigrants, although he must have
included later brothers. Even this number is quite small. Muhammad ibn Sacd, 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.
33 Serjeant, "The Sunnah Jmi ca," 32.
34Bayhaqi's report as reproduced in Lecker, "Wqid's Account," 32.

35Lecker, Constitution of Medina, 75-80.
36Muhammad's paracletic epithet (Q. 61:6)

37Ibn Sacd, 1.1, 103-104. See the paragraph immediately following.
38 A. J. Wensinck, Muhammad and the Jews of Medina, trans. W. Behn (Freiburg: Klaus Schwarz Verlag,
1975), 39-44, 50; Said Amir Arjomand, "Islamic Apocalypticism in the Classical Period," in The Encyclopedia
of Apocalypticism, ed. Bernard McGinn (New York: Continuum, 1998), 2:238-83.

39 A. 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 Sacd, Kitab al-Tabaqat, 2.1:51, 55.
44 Wellhausen, "Muhammads Gemeindeordnung von Medina," 73.
45 Serjeant, "The Sunnah Jmi ca," 38.
46Ibn Sacd, Kitab al-Tabaqat, 2.1:56; J. M. Kister, "The Massacre of the Banu Qurayza," Jerusalem Studies
in Arabic and Islam 8 (1986): 69.
47 Serjeant 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-jmica (taken to mean the "Uniting Precedent"),
which was accepted, alongside the Qur5an, as the basis of binding arbitration in the treaty of Siffin between
cAli 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 Qur5an 3:101-04. Serjeant,
"The Sunnah Jmica," 5-8, 16; idem, "Sunna, Qur3an, cUrf," 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 foundation
of the umma in Medina.
48 Serjeant's most ingenious finding is that the word mu^mimn in the document does not have the common
meaning of "believers" and derives not from imn (faith) but rather from aman (security), citing, inter alia, the
evidence of the Qur5an (6:82). See Serjeant, "The 'Constitution of Medina,' " 3-16; and "The Sunnah Jmica,"
12-15. The connotation of imn is there, but Serjeant shows convincingly that the term mu^minm cannot be
taken to mean "believers" in our document and must mean those who subscribe to and are beneficiaries of
the pact of security with Muhammad as the Prophet of God. It can therefore not be a synonym for Muslim
and does not function as such in the text. The word "covenanter" conveys the legal aspect of the status of
members of the new community constructed by a pact of security with God. It does not, however, convey the
inner dimension of faith in God as the surety to the pact, which was undoubtedly a double entendre intended
by 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^minn by two words: "faithful covenanters." This
seems preferable, despite the loss in parsimony, to leaving the term in Arabic, as Serjeant and Lecker do, or
to translating it anachronistically as "believers," as do most other interpreters.
49The emendation "reside with them" is added from Abu cUbayd'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 rabca to ribâ in CM 3-1 1 on
the basis of Abu cUbayd's text and Lecker's translation of the term. Wherever there is broad disagreement
among translators, I indicate the one closest to mine.
51 According to the custom, any member of the clan could extend protection on behalf of the clan as a whole.
52 See Watt, Muhammad, 222, translation.

53 See Lecker, Constitution of Medina, 1 18, translation: "the Jews who join us as clients."
54See Wellhausen's translation as "einziger und allgemeiner."

55 Lecker's proposed alternative reading on the basis of what is obviously a manuscript-orthographic corruption of umma in an isolated version must be rejected; Lecker, Constitution of Medina, 139-47. It is strange
that, 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 runs
counter to the undeniable thrust of the generality and indivisibility of peace and security, without which there
could be no unified community {umma whida).

56Gil's reading of din (religion) as dayn (debt) is implausible for at least two reasons: the clear religious
connotation of the preceding term, umma, in the contemporary Arabic of the Qur3an and the occurrence of
din 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 Banu
Thaclaba was an Arab clan converted to Judaism, lines 35 and 36 being read as one line in the light of the
identification of Banu Shutayba as a subclan of the Thaclaba in Abu cUbayd's text. Lecker, Constitution of
Medina, 20,31,75-80.
58See Serjeant, "The Sunnah Jmila" 27, translation: "Observance of one's undertaking eliminates treachery/breaking of treaties."
59See Hamidullah, The First Written Constitution, 50, translation: "None of them shall go out (on military
expedition) except with the permission of Muhammad."

60 Abu cUbayd's text has the additional phrase "and support for the wronged."
61 Lecker's alternative reading is problematic; idem, Constitution of Medina, 171-72.

62This line is missing from Abu cUbayd's text.
63 Serjeant, "The Sunnah Jmi ca" 4.
64 Wellhausen, "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, cUmar (r. 63444), the distinction between mu^minn and muslimn had faded, and it came to mean, simply, the "Commander
of the Faithful."
68Wellhausen, "Muhammads Gemeindeordnung von Medina," 69.

69Ibn Ishaq, Sirat Rasul Allah, 351; The Life of Muhammad, 239.
70Ibn Sacd, Kitab al-Tabaqat, 1.2:10.

7 1 Serjeant, "The Sunnah Jmi V 11-12.
72 According 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 Meir
Jacob Kister, "Social and Religious Concepts of Authority in Islam," Jerusalem Studies in Arabic and Islam
18 (1984): 89-91.
73I follow Ibn Sacd {Kitab al-Tabaqat, 2.1 :51) in considering the Qurayza as the subject of these verses.
74Giannakis, "The Concept of Ummah," 108.
75 Muhammad 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.
77 This qualification was used to nullify their rights in practice, fatally in the case of the clan of Qurayza.
78Ibn Sacd, Kitab al-Tabaqat, 1.2:9.

79 Watt, 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" (muhjirn) within their own territories - which
meant they did not have to join the jihd, thereby making an exception to coupling of hijra with jihad as a
condition of Islam. See Wilferd Madelung, "Has the Hijra Come to an End?" Revue des tudes Islamiques 54
(1986): 231-32.
80Watt, Muhammad, 247.
81 Ibn Sacd, 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 amn can mean a pledge of security. Serjeant,
"Sunna, Qur'an, cUrf," 37.

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

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The Constitution of Medina: A Sociolegal Interpretation of Muhammad's Acts of

Foundation of the "Umma"

Said Amir Arjomand

THE CONSTITUTION OF MEDINA: A

MUHAMMAD'S ACTS OF FOUNDATION

One of the oldest extant documents in Islamic history records a se

by Muhammad after his migration (hijra) in 622 from Mecca to Ya

known as "the City [rnadma] of the Prophet." Marking the begin

19th century, Julius Wellhausen, more accurately described it as the

a piece of solid rock in an accumulation of rubble."3

The significance of the text cannot be reduced to its antiquity, how

this significance varies from generation to generation. History i

my interpretation and translation is taken from a 9th-century treati

Ubayd's Kitab al-Amwal.

Said Amir Arjomand is a Distinguished Service Professor in the Department of Soc

2009 Cambridge University Press 0020-7438/09 $15.00

556 Said Amir Arjomand

Wellhausen was the first to assess the document's significance with

without undue presentism, however, labeling the legal document a

it "the earliest written constitution of a state in the world."6 The wi

of the CM as "the constitution of a state" is not supported by the

recover Wellhausen's fundamental insight that the object of the charte

of a political community: the major constitutional issue for Muha

formation of a state but rather the settlement of the religious question

and significance of the CM accordingly stems from its laying the f

R. B. Serjeant's interpretation of the CM was not informed by any

was that the CM was a "pact of security" executed by Muhammad ac

Arabian custom between the Muslims and the inhabitants of Medina.

community (umma) in Medina on the basis of a security pact betw

The Constitution of Medina 557

understanding.14 The works of modern scholarship on the CM discussed previously have

If the significance of the CM is lost in the current constitutional debate on Islamic

and constitutional law in Western Europe. It constructed the historical-political reality of

beyond Medina or established extramural Jewish and Christian protectorates.16 This

558 Said Amir Arjomand

THE HISTORICAL SETTING

The idea of a community designated for salvation through a proph

transformation of the politically segmented tribal society and the stru

impossible in Muhammad's own city of Mecca because of the oppositi

clans as kinship groups and their tribal solidarities.20 According to a m

of Aws and Khazraj. So he wished to establish concord among all of them.21

The Constitution of Medina 559

Jewish groups joined his confederation.

560 Said Amir Arjomand

The Constitution of Medina 561

THE INTERNAL STRUCTURE AND LEGAL LOGIC OF THE

In addition to the historical evidence for the existence of three sep

deeds, my division of the CM text is supported by some formal featur

legal interpretation if my hypothesis is incorrect that the suppleme

The formal marking of each deed at the end is a sort of theocra

and a supplement added to the earlier deed, it is understandable tha

The next differentiating formal feature concerns identification of

mentioned in virtually every article, and the Muslims, divided int

of Quraysh. The Jews and the polytheists appear incidentally as dep

as "the parties to this deed" (ahi hdhihi al-sahfa).

subject. The Covenant of Unity is simultaneously an act of foundatio

of confederation between them and the Muslims of Quraysh and Yathr

the first aspect, the term "faithful covenanters" appears or is referred

confederate clans into which the Muslims of Quraysh and Yathrib ar

pluralism and sanctuary can explain why "faithful covenanters" (mu

(whose confederate structure had already been constituted by the f

might expect mu'minm as the counterpart to the Jews if it were t

religious focus of the deed (see commentary on Article 15, which f