Int. J. Middle East Stud. 41 (2009), 555575. Printed in the United States of America doi:10.

1017/S0020743809990067

Sad Amir Arjomand

THE CONSTITUTION OF MEDINA: 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 OF THE UMMA

One of the oldest extant documents in Islamic history records a set of deeds executed by Muhammad after his migration (hijra) in 622 from Mecca to Yathrib, subsequently known as the City [madna] of the Prophet. Marking the beginning of the Islamic era, the document comprising the deeds has been the subject of well over a century of modern scholarship1 and is commonly called the Constitution of Medinawith some justification, although the first modern scholar who studied it at the end of the 19th century, Julius Wellhausen, more accurately described it as the municipal charter (Gemeindeordnung) of Medina.2 In 1889, Wellhausen highlighted the texts antiquity, which has been acknowledged by even the most skeptical of contemporary sourcecritical scholars, Patricia Crone, who thinks that, in Ibn Ishaqs Sira, it sticks out like a 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, and the past can always be reread in the light of present concerns and from the horizon of expectations of the future.4 Medieval Muslim scholarship primarily followed Ibn Ishaq in seeing the document as Muhammads pact with the Jews of Medina but also recognized it as an important text in public law. In fact, the text used as the basis of my interpretation and translation is taken from a 9th-century treatise on public law, Abu Ubayds Kitab al-Amwal. The constitutionalist reading of the document that accounts for its designation in modern scholarship as the Constitution of Medina (CM) acquires new immediacy with the current widespread preoccupation of Muslims throughout the world with Islamic constitutionalism. The agenda for research in the human sciences, including historiography, is set by the values of each epoch. As the light of the great cultural problems moves on, this research, as Max Weber puts it, follows those stars which alone are able to give meaning and direction to its labors.5 This study of the CM as proto-Islamic public law is accordingly guided by the prominence of a constitutional rereading of Islam among the values of our generation.

Sad Amir Arjomand is a Distinguished Service Professor in the Department of Sociology, State University of New York, Stony Brook, N.Y.; e-mail: said.arjomand@stonybrook.edu. 2009 Cambridge University Press 0020-7438/09 $15.00

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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 TH E PRESEN T STU DY

Wellhausen was the first to assess the documents significance with a fresh constitutional insight derived from the constitutionalism of 19th-century Europe. He did so without undue presentism, however, labeling the legal document a municipal charter in preference to a constitution. Muhammad Hamidullah similarly translated and analyzed the CM under the stimulus of 20th-century Islamic constitutionalism, calling it the earliest written constitution of a state in the world.6 The willful interpretation of the CM as the constitution of a state is not supported by the text, however. I recover Wellhausens fundamental insight that the object of the charter was the creation of a political community: the major constitutional issue for Muhammad was not the formation of a state but rather the settlement of the religious question. The lasting effect and significance of the CM accordingly stems from its laying the foundations of the classic Muslim system of religious pluralism. R. B. Serjeants interpretation of the CM was not informed by any interest in constitutionalism but rather by parallels between 7th-century Arabia and contemporary Arabian (and particularly Yemeni) tribal society and customs.7 His fundamental insight was that the CM was a pact of security executed by Muhammad according to ancient Arabian custom between the Muslims and the inhabitants of Medina. My inference from this insight, combined with Wellhausens, is that Muhammad constituted his distinctive community (umma) in Medina on the basis of a security pact between Muslims who 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 parts11; he accordingly divides his translation and commentary into two separate chapters on the treaty of the u mumin n 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 Leckers 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.

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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 Quran as a contemporary historical source, accepting Estelle Whelans convincing evidence and arguments for its early codification12 and Fred M. Donners for the historicity and stability of the Quranic text and its priority over the sra 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 Serjeants and Leckers, 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 Muhammads 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 historicalpolitical 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 (fiqh) 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 Muhammads 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

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the Quran, 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 amr al-muminn 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 already strongly present in the Meccan verses of the Quran18 and reflects Muhammads conception 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 radical transformation of the politically segmented tribal society and the structure of authority that held apart its segments, the clans.19 The construction of a new community proved impossible in Muhammads own city of Mecca because of the opposition of the Quraysh leaders, and he moved to Yathrib. In Medina, he had to take cognizance of the existing clans as kinship groups and their tribal solidarities.20 According to a multiply transmitted early report,
When Muhammad arrived in Medina, its inhabitants were a mixed lot. They consisted of the Muslims united by the mission (dawa) 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 a . of Aws and Khazraj. So he wished to establish concord among all of them.21

These three groupsMuslims, pagans, and Jewsmade up the social structure of Yathrib and were somewhat mixed because they were organized as clans, with Muhammads 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 (kit b) between the emigrants (muh jir n) and the helpers a a u (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 Waqidis24 and subsequent Muslim commentators a reference to this agreement as a covenant (ahd) and a pact of mutual security (am n) 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.

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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 Muhammads first acts of legislation for his Muslim followers in Medina, namely, the institution of a brotherhood (muakh t) between the emigrants and the helpers.27 The rite of bonding men into brotherhood through Muhammads 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 considered 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.126) 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. Muhammads 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 Kab 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 Prophets death the treaty was kept with Al b. Ab T lib.34 a . . The deed in question is very probably the second section of the text (CM.2752), 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 Thalaba, 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-taabbudiyya, had been changed from Jerusalem to Mecca, the house founded by Abraham. Because Mecca remained under Muhammads 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 a birthplace is Mecca, his name Ahmad,36 and this his House of Migration [d r al-hijra]. Another predicted more ominously that Ahmad the prophet will arise in the land of

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the Qurayza [ard al-qaraz].37 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 Qurans 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 Quran. The complaint that Muhammads 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 (quran) of divine revelation into a written scripture, a book and criterion of differentiation (furq n) of the final revelation. At this a time, too, the Quran 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 umma, and the inner part of Medina was declared a sacred enclave (har m) for the faithful covenanters,40 just as Abraham . a 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. Muhammads 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 Qaynuqa, 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 Muhammads pact or contractaqd in Waqidi,42 ahd and, less conveniently, walthu min ahdin in Ibn Sad43 with the Qurayza. Given the increased strategic importance of the Qurayza and their fortress after the elimination of the Nadir, and given Muhammads 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.5456), 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.5364) 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 Quran (8:5760), 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

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and enslavement of the women and children as the Jews of Aws, condemned by the dying leader of their Arab patron clan, Sad b. Muadh.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 constitutional deeds, my division of the CM text is supported by some formal features of the drafting and, 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 our legal interpretation if my hypothesis is incorrect that the supplement is the agreement concluded with the clan of Qurayza. It could still be a codicil on the defense of Medina 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 theocratic signature. The concluding lines of the first two make God and Muhammad the arbiters of any disputes that may arise among the parties to the deed. If the last deed is essentially a defense pact and a supplement added to the earlier deed, it is understandable that, as its theocratic seal, the provision for judicial arbitration in the earlier deed would be replaced by the benediction of those who observe the pact of God and his messenger, Muhammad. The next differentiating formal feature concerns identification of the parties to the deeds. In the Covenant of Unity, the contracting parties are the faithful covenanters, mentioned in virtually every article, and the Muslims, divided into nine clans: eight native clans of the tribes of Khazraj and Aws and one of the emigrants from the tribe of Quraysh. The Jews and the polytheists appear incidentally as dependents of the nine clans. The pact and its supplement, by contrast, formally identify the contracting parties as the parties to this deed (ahl h dhihi al-sahfa). a . . As for considerations of legal logic, each deed is a coherent legal treatment of its subject. The Covenant of Unity is simultaneously an act of foundation of a community of faithful covenanters (muminn), which defines the relations among them, and an act of confederation between them and the Muslims of Quraysh and Yathrib. With regard to the first aspect, the term faithful covenanters appears or is referred to by a pronoun in every line but the last. Regarding the second aspect, the term appears as the counterpart to the Muslims of Quraysh and Yathrib in the first line and again after each of the nine confederate 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 of new Jewish groups into the community constitution under the protection of God, and it coheres around the constitutional regulation of religion. Its institution of religious pluralism and sanctuary can explain why faithful covenanters (muminn) is inconspicuous and occurs incidentally and only at the very beginning (lines 2728), mainly to 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 we might expect muminn as the counterpart to the Jews if it were the same act as the covenant, we find the term Muslims instead (lines 28, 44). This is logical given the religious focus of the deed (see commentary on Article 15, which follows). The fight (qit l) in the path of God is addressed in all three acts that comprise the CM. a The defense of Medina and the war against the Quraysh is, however, a secondary concern

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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 protection offered in Medinas 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.126) [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 Gods security] (muminn)48 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 w hida) apart from other people. a. [Article 3. Components of the Community, their Organization and Responsibilities] (CM.311) [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 u is customary (bi-l-mar f ), equitably shared among the faithful covenanters. [3.b] The clans of Awf, Saida, the Harith, Jusham, the Najjar, Amr b. Awf, 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.1213) [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 (mawl ) of another a 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 (k fir) and shall not support a 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 [the covenanters] can extend it on behalf of all.51 [Article 8. Relations among the Covenanters] (CM.1718) [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.1921)

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[9.a] Peace of the faithful covenanters is one and indivisible.54 No faithful covenanter shall make peace apart from other covenanters in fighting (qit l) in the path of God, and that only as a just a 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 latters behalf with a faithful covenanter. [Article 12. Protection of Life and Institution of Capital Punishment] (CM.2425) [12.a] Whoever murders a faithful covenanter without cause shall be slain in retaliation upon proof, unless the victims 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 (sahfa) 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.2752) [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.2837) [15.a] The Jews of the clan of Awf are a community (umma) with the faithful covenanters,55 the Jews having their religion (dn) 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 the Najjar, Harith, Saida, Jusham, and the Aws. [15.c] It is likewise the same as the Jews of the clan of Awf with the Jews belonging to the clan of Thalaba, except for any wrongdoer or traitor who brings perdition upon himself and his household. As the Jafna is a subclan of Thalaba, it is treated as the latter; it is the same with the clan 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.3840) [16.a] The clients of Thalaba 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.4142) [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, unless grievously wronged. [Article 18. Gods Guarantee] (CM.43) God is surety for the most righteous observance of this [pact]. [Article 19. Cooperation at War and Solidarity] (CM.4447)

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[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 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 (har m) for [the protection of] the parties to this . a deed. [Article 22. Conditions of Protection within the Sanctuary] (CM.5051) [22.a] The protected person (j r) is like ones self, not molested so long as he commits no offense. a [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 (fas d) should a 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.5364) [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.5455) [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 (dn). 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.5860) 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.6162) [29.a] This document (kit b) offers no protection to the wrongdoer and the criminal. a [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.6364) 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.
S O C IO L E G A L C O M M E N TA R Y

Article 1 Taking muminn (faithful covenanters) to refer to all those who enjoy the security and protection of God by virtue of the covenant hereby executed by Muhammad, we can understand the logic of their subsequent division, in Article 3, into clans as components

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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 (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. 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 Quran 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 w hida), and I am your Lord, so worship me a. (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 u clan of emigrants, which did not exist under paganism (3.a). Custom (al-mar f) 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.

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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 (mumin) in Article 6 is the infidel (k fir, the denier). The latter term, pregnant with a 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 11 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 Gods protection is entitled to extend it to others through the customary institution of ij ra (making one into a neighbor). a 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 Muhammads grant of the title of commander of the faithful covenanters (amr al-muminn) to his cousin, Abdallah bin Jahsh, for leading

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eight or thirteen covenanters in the raid of Nakhla in 623 that preceded even the first major battle, the Badr.67 Article 11 Article 11 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 11 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 (k fir) a 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.ab). 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).70 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 Muhammads 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 mun fiq n a u (hypocrites) initially earned this appellation as a result of their opposition to the nafaqa

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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 Thalaba 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, 114; 13:36, etc.), or more frequently, the peoples of the book (Q. 2:63, 65; 5:6970; 22:18, etc.) under the protection (dhimma) of God. Religious pluralism in Medina was endorsed in the Quran: There is no compulsion in religion72 (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, Quranic 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). Muhammads 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 trod73 (Q. 33:2728).

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.

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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 Quranic verses reflecting the Medinan situation present the umma of Abraham as the prototype of Muhammads umma.74 Because the house of God built by Abraham was under control of his Qurayshite 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 (d r al-hijra).75 Upon the conquest of a Mecca, the institution of hajj around its sanctuary, together with sacrifice, was similarly incorporated into Islam in the Quran (22:2537). 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 ij ra (making one a 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 others 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 others avengers of blood in the war path of God.76

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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 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 Godand 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 Muhammads 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 (muminn) 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 covenanters 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.
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 of 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 [ummat jamian] who acknowledge Thy oneness and my Messengership.78

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As Muhammads 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 Gods 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 Quran or Muhammads treaties.80 Nevertheless, the CM shaped constitutional developments in the Islamic polity of unified Arabia in the last years of Muhammads 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 foremost objective. For the Arabs, submission to Muhammads 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 63031, combining the Quranic 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
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 (muminn) and Muslims became increasingly blurred and finally disappeared. Muminn came to mean believers whose faith in God assured them of inner security. The umma as the heritage of Muhammad was thus brought fully in line with its earliest conception in the Meccan verses of the Quran as the new community of believers whose salvation was assured by Islam. 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 of believers. Each umma was now a community of salvation constituted by the messenger who had brought it divine guidance. The Jews and Christians were the ummas of Moses and Jesus, respectively, and were now excluded from the umma of Muhammad. The unified community (umma w hida) of the faithful covenanters was now a page in a. 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

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of authoritya 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 Quran, which is dated to the 62225 period,82 probably addressed the faithful covenanters, using the equivalent phrase O, you who trust/believe/are made sure [ manu].83 This a 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. 4:5960), the reiteration and confirmation of the final article (Article 13) of the Covenant of Unity.84 That Muhammads authority, thus instituted, was never developed by him or in the Quran to provide constitutional foundations for the state is the greatest puzzle in Islamic history, for which I offer a solution elsewhere.85

NOTES
1 R. Stephen Humphreys, Islamic History: A Framework of Enquiry (Princeton, N.J.: Princeton University Press, 1991), 6583; Michael Lecker, The Constitution of Medina: Muhammads First Legal Document (Princeton, N.J.: Darwin Press, 2004). 2 Wellhausen uses the term in preference to constitution (Verfassung). Julius Wellhausen, Muhammads Gemeindeordnung von Medina, in Skizzen und Vorarbeiten, 4 vols. (Berlin: Reimer, 1889), 4:65 83; W. Behn, ed. and trans., Muhammads 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. 3 Patricia Crone, Slaves on Horses: The Evolution of the Islamic Polity (Cambridge: Cambridge University Press, 1980), 7. 4 Reinhart Koselleck, Futures Past: On the Semantics of Historical Time, trans. Keith Tribe (Cambridge, Mass.: MIT Press, 1992). 5 Max Weber, The Methodology of the Social Sciences, ed. Edward A. Shils and Henry A. Finch (Glencoe, Ill.: Free Press, 1949), 112. 6 Muhammad Hamidullah, Aqdam Dustur Musajjal fi-l-Alam, Islamic Scholars Conference 1 (1937): 98123; idem, The First Written Constitution in the World, 2nd ed. (Lahore, Pakistan: Sh. Muhammad Ashraf, 1968), discussed in Lecker, Constitution of Medina, 12. 7 R. B. Serjeant, The Constitution of Medina, Islamic Quarterly 8 (1964): 316; idem, The Sunnah J mia, Pacts with the Yathrib Jews, and the Tahrim of Yathrib: Analysis and Translation of the Documents a Comprised in the So-called Constitution of Medina, Bulletin of the School of Oriental and African Studies 41 (1978): 141. 8 Lecker, Constitution of Medina, 185. 9 Ibid., 18385. 10 Ibid., 3, 18690; Moshe Gil, The Constitution of Medina: A Reconsideration, Israeli Oriental Studies 4 (1974): 4466. 11 Lecker, Constitution of Medina, 3. 12 Estelle Whelan, Forgotten Witness: Evidence for the Early Codification of the Quran, Journal of the American Oriental Society 118 (1998): 114. The revisionist argument that the Quran is a later plagiarized composition is, by contrast, unconvincing. See Angelika Neuwirth, Quran and HistoryA Disputed Relation: Some Reflections on Quranic History and History in the Quran, Journal of Quranic Studies 5 (2003), esp. 111.

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M. Donner, Narrative of Islamic Origins: The Beginning of Islamic Historical Writing (Princeton, N.J.: Darwin Press, 1998); idem, The Quran in Recent Scholarship: Challenges and Desiderata, in The Quran in Its Historical Context, ed. Gabriel S. Reynolds (London: Routledge, 2008), 4243. 14 A 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 Madjids Interpretation of Civil Society, Pluralism, Secularization, and Democracy, Asian Journal of Social Science 33 (2005): 49295. 15 See Sad Amir Arjomand, Islamic Constitutionalism, Annual Review of Law and Social Science 3 (2007): 11540. 16 See Chapter 1 of my forthcoming Constitutional History of the Islamic Middle East (University of California Press). 17 Some verses of the Quran can be taken as references to and confirmation of its provisions, however, and have been so construed by commentators. 18 F. M. Denny, Umma in the Constitution of Medina, Journal of Near Eastern Studies 36 (1977): 44, 52. 19 Sad Amir Arjomand, Revolution in Early Islam: The Rise of Islam as a Constitutive Revolution, Yearbook of the Sociology of Islam 7 (2006): 12557. 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), 17071. 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, W qids Account of the Status a 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 Umar 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 J mia, 2. a 22 My references are to CM, the Constitution of Medina, Ibn Ishaqs text, as edited and line numbered by Lecker in Constitution of Medina, 79, with emendations, where indicated, on the basis of Abu Ubayds text as edited by Lecker, ibid., 1920. 23 Muhammad ibn Ishaq, Sirat Rasul Allah, ed. Ferdinand W stenfeld (G ttingen, Dieterich, 185860), u o 341; A. Guillaume, trans., The Life of Muhammad (London: Oxford University Press, 1955), 231, slightly modified. 24 Waqidi, Kitab al-Maghaza, 1:177. 25 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 hulaf a . (allies) rather than maw l (clients). I am inclined to think the clan of Qaynuqa were a party to the pact, which a would explain why the leader of the Arab patron clan of Awf, 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 muw daa (truce), ahd a (pact), and aqd (contract). Because Muhammads 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. 26 This early timing, implicit in Ibn Ishaq, is made explicit in the introductory opening of Abu Ubayd al-Qasim bin Sallams version in his Kitab al-Amw l. See Lecker, Constitution of Medina, 19. a 27 Ibn Ishaq, Sirat Rasul Allah, 34445; The Life of Muhammad, 23435. 28 Elias Giannakis, The Concept of Ummah, Graeco-Arabica 2 (1982): 103; Mohammad Ali AmirMoezzi, La religion discr` te. Croyances et pratiques spirituelles dans lislam shiite (Paris: Vrin, 2006), e 3940. 29 The rule of inheritance was later abrogated by the Quran (Q.8.75 and/or Q.4.33, and/or Q.33.6). See W. M. Watt, Muakhat, 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 Ali as his own brother, thus also making him his heir. Moezzi, La religion discr` te, 40. e 31 Ibn Sad 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 Sad, Kitab al-Tabaqat al-Kabir (Biographien), ed. Eduard Sachau (Leiden: E. J. Brill, 1917), 1.2:1.

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Ishaq, Sirat Rasul Allah, 552; The Life of Muhammad, 368. The Sunnah J mia, 32. a 34 Bayhaqis report as reproduced in Lecker, W qids Account, 32. a 35 Lecker, Constitution of Medina, 7580. 36 Muhammads paracletic epithet (Q. 61:6) 37 Ibn Sad, 1.1, 103104. See the paragraph immediately following. 38 A. J. Wensinck, Muhammad and the Jews of Medina, trans. W. Behn (Freiburg: Klaus Schwarz Verlag, 1975), 3944, 50; Sad Amir Arjomand, Islamic Apocalypticism in the Classical Period, in The Encyclopedia of Apocalypticism, ed. Bernard McGinn (New York: Continuum, 1998), 2:23883. 39 A. T. Welch, al-Kur n, Encyclopedia of Islam (Leiden: E. J. Brill, 1986), 5:403. a 40 Denny, Umma in the Constitution of Medina, 45. 41 Uri Rubin, The Constitution of Medina. Some Notes, Studia Islamica 52 (1985): 11. 42 Waqidi, Kitab al-Maghaza, 2:45456. 43 Ibn Sad, Kitab al-Tabaqat, 2.1:51, 55. 44 Wellhausen, Muhammads Gemeindeordnung von Medina, 73. 45 Serjeant, The Sunnah J mia, 38. a 46 Ibn Sad, 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-j mia (taken to mean the Uniting Precedent), a which was accepted, alongside the Quran, as the basis of binding arbitration in the treaty of Siffin between Ali and Muawiya in 65657. The Siffin reference is probably anachronistic. More plausible and intriguing, however, is his identification of the deed with the pact of God (habl All h) in Quran 3:10104. Serjeant, a The Sunnah J mia, 58, 16; idem, Sunna, Quran, Urf, in Christian Toll and Jakob Skovgaard-Petersen, a eds., Law and the Islamic World Past and Present (Copenhagen: Historisk-filosofiske Meddelelser 68, 1995), 3441. Whatever the merits of Serjeants arguments, the first section of the document is the act of foundation of the umma in Medina. 48 Serjeants most ingenious finding is that the word muminn in the document does not have the common meaning of believers and derives not from im n (faith) but rather from am n (security), citing, inter alia, the a a evidence of the Quran (6:82). See Serjeant, The Constitution of Medina, 316; and The Sunnah J mia, a 1215. The connotation of im n is there, but Serjeant shows convincingly that the term muminn cannot be a 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), 2631. I am therefore translating muminn 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. 49 The emendation reside with them is added from Abu Ubayds text, following the suggestion by Rubin, The Constitution of Medina, 910. 50 I follow Lecker (Constitution of Medina, 99102) in his emendation of raba to rib a in CM 311 on a the basis of Abu Ubayds text and Leckers 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, 118, translation: the Jews who join us as clients. 54 See Wellhausens translation as einziger und allgemeiner. 55 Leckers 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, 13947. It is strange that, after his strict criticism of Serjeants many unwarranted emendations, he adduced such flimsy evidence. In any event, his speculative argument for particularistic grant of security (am n) to specific Jewish clans runs a counter to the undeniable thrust of the generality and indivisibility of peace and security, without which there could be no unified community (umma w hida). a
33 Serjeant,

32 Ibn

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56 Gils

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reading of dn (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 Quran and the occurrence of dn in CM.56. Gil, The Constitution of Medina, 63. 57 Lines 3436 are made into one clause and translated in light of Leckers explanation that the Banu Thalaba 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 Thalaba in Abu Ubayds text. Lecker, Constitution of Medina, 20, 31, 7580. 58 See Serjeant, The Sunnah J mia, 27, translation: Observance of ones undertaking eliminates treacha ery/breaking of treaties. 59 See Hamidullah, The First Written Constitution, 50, translation: None of them shall go out (on military expedition) except with the permission of Muhammad. 60 Abu Ubayds text has the additional phrase and support for the wronged. 61 Leckers alternative reading is problematic; idem, Constitution of Medina, 17172. 62 This line is missing from Abu Ubayds text. 63 Serjeant, The Sunnah J mia, 4. a 64 Wellhausen, Muhammads Constitution of Medina, 131. 65 Rubin, The Constitution of Medina, 1213. 66 Lecker, Constitution of Medina, 86. 67 Waqidi, Kitab al-Maghaza, 1:19. When the title was later assumed by the second Caliph, Umar (r. 634 44), the distinction between muminn and muslimn had faded, and it came to mean, simply, the Commander of the Faithful. 68 Wellhausen, Muhammads Gemeindeordnung von Medina, 69. 69 Ibn Ishaq, Sirat Rasul Allah, 351; The Life of Muhammad, 239. 70 Ibn Sad, Kitab al-Tabaqat, 1.2:10. 71 Serjeant, The Sunnah J mia, 1112. a 72 According to one important tradition, this verse was revealed on the occasion of the Prophets 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): 8991. 73 I follow Ibn Sad (Kitab al-Tabaqat, 2.1:51) in considering the Qurayza as the subject of these verses. 74 Giannakis, 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. 76 Eric 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. 78 Ibn Sad, Kitab al-Tabaqat, 1.2:9. 79 Watt, Muhammad, 14446. In the year 626, he made a special arrangement with 400 men from the Muzayna tribe, granting them the status of emigrants (muh jir n) within their own territorieswhich a u meant they did not have to join the jih d, thereby making an exception to coupling of hijra with jihad as a a condition of Islam. See Wilferd Madelung, Has the Hijra Come to an End? Revue des Etudes Islamiques 54 (1986): 23132. 80 Watt, Muhammad, 247. 81 Ibn Sad, Kitab al-Tabaqat, 2:2829, 3638. 82 Watt, Muhammad, 233. 83 The preceding verse, Q. 4:58, commands the return of the am n t to their owners. The term is commonly a a translated as deposits but more likely means pledges, because am n can mean a pledge of security. Serjeant, a Sunna, Quran, Urf, 37. 84 Ibid. 85 See my forthcoming Constitutional History of the Islamic Middle East.