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The Constitution of Medina

Ali Khan

The first Islamic state was founded not in the shadow of swords, as is commonly believed

in some circles, but in the security of a social contract, called the Constitution of Medina.

By all counts, the Medina Constitution lit the torch of freedom by establishing a Free State

for a pluralistic community composed of Muslims, Jews, and pagans. This unprecedented

Free State, the first of its kind in the intellectual and political history of human civilization,

was founded by none other than Prophet Muhammad himself in the Gregorian year of 622,

that is, more than thirteen hundred years before the Universal Declaration of Human Rights

(1948) envisaged a modern pluralistic, religiously tolerant Free State.

In 622, the Prophet and his followers were forced to leave the increasingly oppressive city

of Mecca, which had become a place of religious intolerance and persecution. In the hope

of peace and freedom, they migrated to Medina. The year 622 which is known as the year

of migration or the hijrah set in motion two important Islamic events. Chronologically, this

is the year that starts the Islamic Calendar. Politically, this is the year when the Medina

Constitution was agreed upon and written into law. At the time the Medina Constitution

was written, however, the Quran was far from complete as it was still being revealed to the

Prophet; and the Muslim community, though gradually increasing in numbers, was still no

more than a total of 200 men, women and children.

Most scholars accept the authenticity of the Medina Constitution, though the original

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document has not been found. Scholars fail to agree, however, whether the Medina

Constitution is a single contract or a compilation of multiple agreements reached at

different times. A close reading of the document reveals that its provisions are most

coherent when read as a compilation of two separate agreements. Muhammad Hamidullah

makes a persuasive case that the Medina Constitution, because of its tone and phraseology,

was not drafted in a single sitting. He divides the document into two parts. Part 1 (i.e.,

articles 1-23) addresses mutual relations among Muslims. Part II (i.e., articles 24-47)

contains rules to regulate inter-communal affairs between Muslims and Jews.1 This textual

division of the Medina Constitution, though necessary to make the most sense of the

document, does not undermine its underlying organic appeal to found Islamic Free State on

principles of equality, equity, and religious freedom.

The most organic feature of the Medina Constitution is that it establishes an Islamic Free

State on the basis of a social contract. A point of contrast must be noted here: The Western

political theory of social contract, derived from the works of Hobbes, Rousseau and Rawls,

presupposes a fictional state of nature, and draws various normative and structural

inferences. Hobbes installs a mighty sovereign who commands absolute power over the

people to “keep them all in awe.” Rousseau’s theory of social contract lodges sovereignty

in the will of the people. This highly abstract notion of the general will lead to all sorts of

distortions, including the legitimization of totalitarian democracies. Rawls is no better

because, despite some brilliant insights, he anchors his theory in an artificial device of the

1
Muhammad Hamidullah, Majmu al-Watha’iq al-Siyasiyya fi al-Ahd al-Banawi wa al-Khaliafa al-Rashida

1941).

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“veil of ignorance.” Contrary to these fictional, artificial, and theoretical accounts of social

contract, the Islamic Free State is founded on the reality of an actual agreement among real

people of diverse ethnic and religious groups. This reality based social contract is not even

a theory or an inspirational constitution to be implemented in the future. The Medina

Constitution offered social contract in real time, in real space, to real people through a real

agreement, hundreds of years before the theory of social contract gained widespread

approval, mostly in the West.

An equally impressive and timeless contribution of the Medina Constitution is the

normative establishment of a pluralistic community. The Constitution’s opening articles

state that Muslims of Quraysh and Yathrib, and those who followed them and joined them

and labored with them, are one community to the exclusion of all men. These provisions

assert that the immigrant Muslims of Mecca and native Muslims of Medina constitute one

community. Conceptually, the Constitution establishes the concept of the community of

believers (ummat–al mumunin). The community of believers treats all Muslims with equal

respect and dignity. It dissolves the distinction between natives and immigrants, offering

principles of equality and justice to all Muslims, regardless of their origin of birth,

nationality, tribe, or any other ethnic or racial background. It does not allow natives to have

superiority over immigrants or vice versa. The Islamic Free State is therefore not

exclusively identified with any one tribe or culture but is expanded to include immigrants

with diverse dialects, cultures, and social habits. The modern concept of citizenship,

practiced in some Muslim states, which excludes immigrant Muslims from the rights of

citizenship on a permanent basis, would be incompatible with the letter and spirit of the

Medina Constitution.

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Part II of the Constitution further expands the scope of community that the Islamic Free

State protects. Articles 25-35 mention a legion of Jewish tribes, such as ‘Auf, Najjar,

Harith, Sai’ida, Jusham, Aus, Tha'laba, and Jafna, granting each tribe the right to be “one

community with the believers.” This expansive concept of the community is most

significant because an Islamic Free State is no longer conceived as an exclusively Muslim

nation. In modern terms, an Islamic state can be a religiously pluralistic state. Any attempts

to cleanse an Islamic state of the peoples of other religions would be incompatible with the

dictates of the Medina Constitution.

Furthermore, the Medina Constitution does not treat all Jews as one monolithic population.

It treats them as a religious population but recognizes their diverse ethnic, cultural, or

linguistic characteristics, just as it acknowledges similar diversity within the Muslim

population. This comprehensive recognition of each distinct Jewish group in a separate

Article of the Constitution bestows equal dignity and respect upon all Jewish tribes with

whom the social contract was made, rejecting the concept that some Jews are superior to

others. Each Jewish tribe in the Constitution is placed on an equal footing with each other

as well as with the community of believers, i.e., Muslims.

Article 25 grants the freedom of religion, stating that “the Jews have their religion and the

Muslims have theirs.” Prophet Muhammad is of course no moral relativist or, for that

matter, secular. He is God’s Prophet, seeing God in all aspects of life. The model of life he

presents is spiritual, a model under which human beings are constantly conscious of God,

devoted to God, and live and die for God. And the religion of Islam that the Prophet

transmitted to the humanity contained no flaws. Despite this absolute confidence in the

truth of Islam, the Medina Constitution, made in the midst of God’s revelations to the

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Prophet, does not establish a self-righteous State, compelling its citizens to adhere to the

official religion of Islam. And despite the Prophet’s openly expressed belief that the

Divine Torah has been altered, the Medina Constitution nonetheless frames a Free State

under which Jews are free to practice their religion as they believe it. This normative

freedom to practice one’s religion as one believes it, and even if it is contrary to Muslim

beliefs, demonstrates the highest possible form of religious tolerance. The Medina

Constitution refutes theories that insist that only secularism can protect religious freedom.

In addition to protecting religious freedom, the state that the Medina Constitution

establishes is a pluralistic state. The Medina Constitution is not simply an accord among

Muslims. It is also a treaty between distinct religious communities, Jews and Muslims. By

implication of its underlying principle, the Islamic Free State is not confined to Muslims

but is open to the followers of all monotheistic religions and even beyond, for after all

Medina was both monotheistic and pagan.

Yet another remarkable feature of the Medina Constitution is its recognition that a lawful

agreement is always subject to supra-normative constraints. In modern terms, for example,

agreements contrary to state policies and values are unenforceable. In the international

legal system, agreements contrary to jus cogens or peremptory norms carry no validity.

Recognizing supra-normative constraints, Article 47 explicitly states that this Constitution

“will not protect the unjust and the sinner.” Thus, the Medina Constitution was not an

accord reflecting “political realities” or “ugly compromises.” It was indeed a morally

honest agreement, true to the revealed (and to be revealed) words of the Quran, and made

under the Prophet’s guidance. As such, the value of the Medina Constitution lies in its

moral authenticity and in its virtue that a social contract among diverse peoples can be

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reached on the basis of freely expressed consent.

Among the Islamic sources of law, the Medina Constitution should not be treated as a

distinct source of law and jurisprudence. It is part of the Prophet’s Sunna. The Quran

remains the supreme source of law, and nothing in the Medina Constitution can be invoked

to trump the Quran’s text. Since the Sunna is fully compatible with, and always

subservient to, the Quran, the Medina Constitution is remarkable in its compatibility with

the Quran’s principles of inter-human behavior. For example, the Medina Constitution’s

religious freedom is in accord with the Quran that lays out the principal idea of spiritual

freedom to practice one’s religion as one believes it. “To you be your Way, and to me

mine.” 2

Anver Emon, a student of Professor Khaled Abou El Fadl, has written a well-argued article

to demonstrate that modern scholars are reading too much into the Medina Constitution.

“The fact that recent Muslim authors often address a presumed constitutional theory

implicit in the document may have more to do with twentieth century politics in the

Muslim world than with anything inherent in the text.”3 Emon’s argument, however,

misses the point that the Medina Constitution, as part of the Prophet’s Sunna, is an eternal

source of guidance and each community of believers in the constant flow of time may tap

into this source to derive meaning and guidance for structuring a life consistent with the

2
Quran 109:6.
3
Anver Emon, Reflections on the Constitution of Medina, 1 UCLA Journal of Islamic and Near Eastern Law

103, 133 (2001-2002).

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values of the Quran and the Sunna, the Basic Code of Islam.4

4
Ali Khan, The Reopening of the Islamic Code: The Second Era of Ijtihad," 1 University of Saint Thomas

Law Journal 341 (2003).