The Madina Charter - STRADA PLACIDO

by Kassim Ahmad

The Medina Charter, written and promulgated by Prophet Muhammad for the multi-religious ten thousand-strong citizens of the city-state of Medina in 622 A.D is truly a remarkable political-constitutional document. The claim made by Professor M. Hamidullah that it was the first written constitution (FN1) in the world is not without basis. Aristotle's Constitution of Athens (FN2), written on papyrus, discovered by an American missionary in Egypt in 1890 and published in 1891, was not a constitution. It was an account of the constitution of the city-state of Athens. Other legal writings on the conduct of ancient societies have been found, but none can be described as a constitution. The Medina Charter is the first, and in this it preceded the American Constitution of 1787, considered by Western authorities as "a landmark document of the Western world … the oldest written national constitution in operation" (FN3) by more than a thousand years! It also preceded the English feudal bill of rights, the Magna Carter of 1215, by almost six centuries!

Not only is the Madina Charter important in the sense that it is the first written constitution; it is also modern in the sense that it was promulgated for a plural society, giving equal rights to every citizen as well as giving them a say in governmental matters, as we shall see.

Considering all these, it is amazing that those Muslim leaders and writers who talk and write about the Islamic state seldom refer to this important seminal political document of Islam.

It is to be remembered that Muhammad had become a prophet, reciting God's revelations to his fellow-Meccans, for twelve years before he and his followers migrated to Yathrib, two hundred and ten miles to the north of Mecca. There was going to be another ten years to his mission before he completed the delivery of the Divine message to the Arabs and to mankind in God's final scripture, the Quran. So this Medina Charter was provisional in the sense that it could not contain all the provisions of statecraft contained in the Quran. Yathrib was later to known as "The City of the Prophet " or simply Medina. The reason for the migration was the growing opposition of the Quraisy aristocracy to his teachings and the receptive attitude shown by some Yathrib pilgrims to Mecca at this time.

The whole text of the Charter has been reproduced, word for word, by Ibn Ishaq and Abu Ubaid in their respective books from the original preserved by Ibn Abi Khithamah. (FN4)

The Charter consists of 47 clauses, but due to different numbering, Prof. Hamidullah counts it to be 52 (FN5). Clauses 1, 2 and 39 state the formation of a sovereign nation-state with a common citizenship, consisting of various communities, principally Muslim Arabs from Mecca (the Muhajirin or Immigrants), Muslim Arabs from Yathrib (the Ansar or Helpers), other monotheists form Yathrib (i.e. the Jews) and others who must be at that time still pagans. These constitute a unified citizenry (Arabic term, ummah), having equal rights and responsibilities, as distinct from other peoples.

It should not escape anyone's notice that these two clauses established the first modern nation-state in the world. Although Medina was just a city, its Charter was to last until the beginning of the Umayyad Dynasty in 1661. Western historians cite the Treaties of Westphalia in 1648 as the beginning of the modern nation-state era. (FN6)

The Charter provided a federal structure with a centralized authority, with the various tribes in various districts constituting a unit and enjoying autonomy in certain matters of a social, cultural and religious character. Provision for this district autonomy is repeated for each district. (Clauses 3 through to 11 and 26 through to 35) In fact, many matters were left in the hands of the autonomous units, except state security and national defense. (Clauses 17, 36 (a) and 47) Provisions for these centralized subjects are made in Clauses 13, 15, 17 and 44. Only in cases of disputes the units could not resolve, recourse for their decisions had to be made to the Prophet, whose decision was final. (Clauses 23 and 41)

As Prof. Hamidullah rightly stated, " … this new constitution … brought with it very important, and -- to Arabia at least -- very revolutionary change and improvement, by providing the people with a central public institution for seeking justice, in place of everyone seeking it with the power of his own hand or, at best, that of his family. This epoch-making innovation … brought an end for all times to the chaos of tribalism and which laid the basis for a wider institution, viz a State." (FN7)

It should be noted that this loyalty to the State by its plural citizenry constituted a nationalism, or more exactly a patriotism, that is approved by Islam, contrary to what some modern Muslim ideologues assert. It is in line with the teaching in the Quranic verse, "O people, We created you from the same male and female and rendered you into distinct peoples and tribes that you may recognize one another. The best of you in the sight of God is the most righteous." (FN8)

There were twenty districts each with a chief (naqib) and deputy chiefs (`arif) and its meeting place (saqifah). The city at this time had a population of about ten thousand. Of these, the Muslims made up only a few hundred; half of it were monotheist Jews, the rest being polytheists. (FN9)

It is noteworthy that the Charter ordained equality to its members and protected them against oppression. (Clause 16). The State proclaimed the brotherhood of believers and gave each one a right and support to give protection to any individual, excepting an enemy. (Clause 15). It also extended help to its members in debt or in financial difficulties in regard to payment of ransom or blood-money. (Clause 12). It prohibited help or refuge to be given to a murderer. (Clause 22).

A very important human right is given in Clause 25 where freedom was guaranteed for each community to practice its own religion. The implication of this clause is that each individual was also free to choose his or her religion, in line with the clear teachings of the Quran. (FN10)

Another important principle of statecraft is consultation with the people in all matters. This is stated in Clause 37(a). Unlike in modern democratic polity, the voice of the people, vox populi, regardless of whether that voice represents right and truth or not, is given the highest value. This is a basic flaw in Western democracy. Another important principle of just governance is that no quarter is given to an injustice or wrong-doing. In the Charter, this is stated in Clause 47.

As I stated above, this constitution is Muhammad's ijtihad at formulating a constitution when he was confronted with the task of administrating the city-state of Medina. At this time, he had not yet received the full Quran. He had therefore to fall back on customs and precedents, and he did. In any case, all constitutions are provisional in the sense that it must be adapted to changing times.

A trace of Arab tribalism can be detected in two clauses where a member together with his family were to be punished because of a crime he committed. (Clauses 25 and 36(b)) This clearly contradicts another clause which states that no evil-doer is punished except for the crime he commits. (Clause 46)

Perhaps, in the light of present Muslim interest in an "Islamic state", we should point out that this important constitutional document of Islam does not anywhere use the term "Islamic state" of "Islamic society". The major principles governing an Islamic society are, of course, present -- principles like justice, brotherhood and unity of believers, unity and cooperation among zitizens of the state, freedom of religion, strict adherence to pacts entered into between parties, cooperation to do good and to prevent evil, encouragement for high moral conduct, consultation as a method of government. It is also interesting to note that what has been called "Hudud laws", being part of Islamic Law, is also nowhere mentioned in the document.

It should be noted that the Charter, this first Islamic political-constitutional document, was given to the people of Medina in the name of Muhammad the Prophet (Clause 1) and also in the name of God as well as Prophet Muhammad. (Clause 47) Why two different ways of phrasing the ultimate source of power? It is to be remembered that during the Western Middle Ages, the Church ruled supreme in the name of God, and God's name was, of course, much misused by hypocrites and opportunists. The modern Western practice of replacing God with the people has, of course, not helped matters very much. In the name of the people, oppression, wars, colonialism and aggressions have been launched.

Thus, even in this modern age of science and technology, mankind cannot ignore a power that is greater than itself. Mankind has an autonomous right to live, and to live happily, but he must do that in a lawfully created Universe. It is in this sense that the Charter was given in the name of Muhammad the Prophet, who represented the principle of the good and of right reason, which is higher than the individual man. Likewise, in Clause 47 God's name was put first, as God represents the highest Good and the highest principle of right reason. This is necessary to conduct Man to higher and ever higher achievements.

APPENDIX

THE MEDINA CHARTER (FN11)

In the name of God the Compassionate, the Merciful.

This is a document from Muhammad the Prophet (may Allah bless him and grant him peace), governing relations between the Believers i.e. Muslims of Quraysh and Yathrib and those who followed them and worked hard with them. They form one nation -- Ummah.

The Quraysh Mohajireen will continue to pay blood money, according to their present custom.

In case of war with any body they will redeem their prisoners with kindness and justice common among Believers. (Not according to pre-Islamic nations where the rich and the poor were treated differently).

The Bani Awf will decide the blood money, within themselves, according to their existing custom.

In case of war with anybody all parties other than Muslims will redeem their prisoners with kindness and justice according to practice among Believers and not in accordance with pre-Islamic notions.

The Bani Saeeda, the Bani Harith, the Bani Jusham and the Bani Najjar will be governed on the lines of the above (principles)

The Bani Amr, Bani Awf, Bani Al-Nabeet, and Bani Al-Aws will be governed in the same manner.

Believers will not fail to redeem their prisoners they will pay blood money on their behalf. It will be a common responsibility of the Ummat and not of the family of the prisoners to pay blood money.

A Believer will not make the freedman of another Believer as his ally against the wishes of the other Believers.

The Believers, who fear Allah, will oppose the rebellious elements and those that encourage injustice or sin, or enmity or corruption among Believers.

If anyone is guilty of any such act all the Believers will oppose him even if he be the son of any one of them.

A Believer will not kill another Believer, for the sake of an un-Believer. (i.e. even though the un-Believer is his close relative).

No Believer will help an un-Believer against a Believer.

Protection (when given) in the Name of Allah will be common. The weakest among Believers may give protection (In the Name of Allah) and it will be binding on all Believers.

Believers are all friends to each other to the exclusion of all others.

Those Jews who follow the Believers will be helped and will be treated with equality. (Social, legal and economic equality is promised to all loyal citizens of the State).

No Jew will be wronged for being a Jew.

The enemies of the Jews who follow us will not be helped.

The peace of the Believers (of the State of Madinah) cannot be divided. (it is either peace or war for all. It cannot be that a part of the population is at war with the outsiders and a part is at peace).

No separate peace will be made by anyone in Madinah when Believers are fighting in the Path of Allah.

Conditions of peace and war and the accompanying ease or hardships must be fair and equitable to all citizens alike.

When going out on expeditions a rider must take his fellow member of the Army-share his ride.

The Believers must avenge the blood of one another when fighting in the Path of Allah (This clause was to remind those in front of whom there may be less severe fighting that the cause was common to all. This also meant that although each battle appeared a separate entity it was in fact a part of the War, which affected all Muslims equally).

The Believers (because they fear Allah) are better in showing steadfastness and as a result receive guidance from Allah in this respect. Others must also aspire to come up to the same standard of steadfastness.

No un-Believer will be permitted to take the property of the Quraysh (the enemy) under his protection. Enemy property must be surrendered to the State.

No un-Believer will intervene in favour of a Quraysh, (because the Quraysh having declared war are the enemy).

If any un-believer kills a Believer, without good cause, he shall be killed in return, unless the next of kin are satisfied (as it creates law and order problems and weakens the defence of the State). All Believers shall be against such a wrong-doer. No Believer will be allowed to shelter such a man.

When you differ on anything (regarding this Document) the matter shall be referred to Allah and Muhammad (may Allah bless him and grant him peace).

The Jews will contribute towards the war when fighting alongside the Believers.

The Jews of Bani Awf will be treated as one community with the Believers. The Jews have their religion. This will also apply to their freedmen. The exception will be those who act unjustly and sinfully. By so doing they wrong themselves and their families.

The same applies to Jews of Bani Al-Najjar, Bani Al Harith, Bani Saeeda, Bani Jusham, Bani Al Aws, Thaalba, and the Jaffna, (a clan of the Bani Thaalba) and the Bani Al Shutayba.

Loyalty gives protection against treachery. (loyal people are protected by their friends against treachery. As long as a person remains loyal to the State he is not likely to succumb to the ideas of being treacherous. He protects himself against weakness).

The freedmen of Thaalba will be afforded the same status as Thaalba themselves. This status is for fair dealings and full justice as a right and equal responsibility for military service.

Those in alliance with the Jews will be given the same treatment as the Jews.

No one (no tribe which is party to the Pact) shall go to war except with the permission of Muhammed (may Allah bless him and grant him peace). If any wrong has been done to any person or party it may be avenged.

Any one who kills another without warning (there being no just cause for it) amounts to his slaying himself and his household, unless the killing was done due to a wrong being done to him.

The Jews must bear their own expenses (in War) and the Muslims bear their expenses.

If anyone attacks anyone who is a party to this Pact the other must come to his help.

They (parties to this Pact) must seek mutual advice and consultation.

Loyalty gives protection against treachery. Those who avoid mutual consultation do so because of lack of sincerity and loyalty.

A man will not be made liable for misdeeds of his ally.

Anyone (any individual or party) who is wronged must be helped.

The Jews must pay (for war) with the Muslims. (this clause appears to be for occasions when Jews are not taking part in the war. Clause 37 deals with occasions when they are taking part in war).

Yathrib will be Sanctuary for the people of this Pact.

A stranger (individual) who has been given protection (by anyone party to this Pact) will be treated as his host (who has given him protection) while (he is) doing no harm and is not committing any crime. Those given protection but indulging in anti-state activities will be liable to punishment.

A woman will be given protection only with the consent of her family (Guardian). (a good precaution to avoid inter-tribal conflicts).

In case of any dispute or controversy, which may result in trouble the matter must be referred to Allah and Muhammed (may Allah bless him and grant him peace), The Prophet (may Allah bless him and grant him peace) of Allah will accept anything in this document, which is for (bringing about) piety and goodness.

Quraysh and their allies will not be given protection.

The parties to this Pact are bound to help each other in the event of an attack on Yathrib.

If they (the parties to the Pact other than the Muslims) are called upon to make and maintain peace (within the State) they must do so. If a similar demand (of making and maintaining peace) is made on the Muslims, it must be carried out, except when the Muslims are already engaged in a war in the Path of Allah. (so that no secret ally of the enemy can aid the enemy by calling upon Muslims to end hostilities under this clause).

Everyone (individual) will have his share (of treatment) in accordance with what party he belongs to. Individuals must benefit or suffer for the good or bad deed of the group they belong to. Without such a rule party affiliations and discipline cannot be maintained.

The Jews of al-Aws, including their freedmen, have the same standing, as other parties to the Pact, as long as they are loyal to the Pact. Loyalty is a protection against treachery.

Anyone who acts loyally or otherwise does it for his own good (or loss).

Allah approves this Document.

This document will not (be employed to) protect one who is unjust or commits a crime (against other parties of the Pact).

Whether an individual goes out to fight (in accordance with the terms of this Pact) or remains in his home, he will be safe unless he has committed a crime or is a sinner. (i.e. No one will be punished in his individual capacity for not having gone out to fight in accordance with the terms of this Pact).

Allah is the Protector of the good people and those who fear Allah, and Muhammad (may Allah bless him and grant him peace) is the Messenger of Allah (He guarantees protection for those who are good and fear Allah).