THE CONSTITUTION OF MADĪNAH

Muhammad Yusuf Guraya

Introduction 

Islam lays a great stress on the rights and duties of man. It has explained the obligations of man towards his Creator- Bask and fundamental teachings for controlling the behaviour of the( people were revealed in the very beginning of Islam. The Holy Qur’ān is the Guide. It shows the way in which a government and society are organised. It is the system of fundamental laws and principles of a government, state anal society. The Qur’ānic universal constitutional and legal principles arc fully appreciated when they are compared with the pre-Islamic primitive, tribal and arbitral usages and practices. The greatness and importance of the exemplary conduct and the Sunnah of the Holy Prophet (peace and blessings of God be upon him) with regard to law and constitution become crystal clear when it is explained that a highly constitutional government was formed at a time when the world was not aware of the concept of constitution.

The tribe was the central concept in the political thinking of pre-Islamic Arabia. It was essentially a group based on blood-relationship- Membership of a tribe was the only safeguard for the protection of life and property, and in return the tribe demanded supreme loyalty. Islam abolished the basis of the pre-Islamic socio-political structure and created the Islamic Ummah in place of the tribe. Ummah was based on universal religious and moral principles and not on kinship. This fact has been given theoretical expression as well as practical demonstration. The Qur’ān has stated in unequivocal terms that the believers in Islam, regardless of their race, region and colour, were one compact community (Ummah): “The believers are brethern.”[1]

Practically speaking, Muhammad (p.b.u.h.) was accepted as Prophet by multi-racial stocks of people and members of differ­ent Arab tribes and clans at Makkah- His acceptance by the Ansār of Madīnah was the greatest event for the development and consolidation of the concept of Ummah. Hijrah, the Emigra­tion of the Holy Prophet and his followers and of different clans and members of various tribes of Arabia from Makkah to Madīnah, was not merely a change of location it was rather a change of relationship, i.e. to leave one’s tribe and attach to the Ummah. Any deviation from the way of the believers was regarded as transgression and entailed punishment of Hell.[2] For the purposes of retaliation, ransom and blood-wit, the Ummah was regarded as a tribe even by its enemies.

The Holy Prophet of Islam was the head of the Ummah- Acceptance of Islam by any person included the acceptance of religio-political leadership of the Holy Prophet- It has been explicitly stated in the Holy Qur’ān : “Say : Obey Allah and the Prophet”;[3] “Whoever obeys the Prophet, he indeed obeys Allah.”[4]

The Ummah with its head had come into being but the socio-political environment of Makkah was not conducive to the implementation of its ideals- II required a new socio-political environment.

After about thirteen years of his prophethood the Holy Prophet entered into an agreement with the Muslim leaders of the Aws and Khazraj of Madīnah who invited him to their city, pro­mised to follow Islamic injunctions and undertook to protect him against his enemies, particularly the Qaraish.[5] Consequently, the Holy Prophet left Makkah for Madīnah. Here he got time and opportunity to think over the situation relatively peacefully- He organised his followers, sympathisers and allies and laid down the foundation of a state for which a constitution was framed- Hamidullah has argued that it was the “First Written-Constitution in the World”- Remarking on the previous works on the subject he concludes that they were either in the nature of text-books or advice-books to princes or are histories accounts of the constitutional set-up of certain places: “Non of these enjoys the dignity of an authoritative constitution of stale issued by the sovereign of the country. Ours is the first of its kind in the world.”[6] Ibn Hishām has preserved the full text of the Constitution.[7] Its English translation is given below:

Constitution of Madīnah

In the name of God, the Most Merciful, the Most Compassionate.

(I) This is a constitution from Muhammad the Prophet be tween the believers and Muslims of the Quraish and Yathrib am those who follow them and join them and fight alongwith them.

(2) They are one community (Ummah) distinct from other people.

(3) The Emigrants from among the Quraish, according to their former condition,[8] shall pay jointly the blood-money, an( they shall ransom their captives in all fairness and equity common among the believers-

(4) Banū  ‘Awf, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers.

(5) Banū’ al-Hārith, according to the former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers-

(6) Banū Sā’idah, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers.

(7) Banū Jusham, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers.

(8) Rand al-Najjār, according to their former condition, shall pay jointly their blood-wits as heretofore, and cacti sub-clan shall ransom its captives in all fairness and equity common among the believers-

(9) Banū ‘Amr b. ‘Awf, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers-

(10) Banū al-Nabit, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers-

(11) Banū ‘al-Aws, according to their former condition, shall pay jointly their blood-wits as heretofore, and each sub-clan shall ransom its captives in all fairness and equity common among the believers.

(12) The believers shall not forsake anyone among them hard pressed with debts, but shall help him in all fairness with ransom or blood-money.

(13) A believer shall not take as an ally[9] the freedman of another believer against the latter.

(14) The God-fearing believers shall be against whoever o them shall revolt or who shall seek to spread injustice or treachery or aggression or corruption among the believers; their hand: shall be all together against him, even if he be the son of one o them-

(15) A believer shall not slay a believer for an unbeliever and shall not help an unbeliever against the believer-

(16) The protection of God is one; the least of then ma: grant neighbourly protection on their behalf, the believers an protectors of one another to the exclusion of other people-

(17) Whoever of the Jews follows us shall have the help and have equal status, so long as the Muslims shall not be wronged (by him) nor shall he help (others) against thorn.

(18) The peace of the believers is one; no believer shall malt, peace apart from another believer during war in the Way o G d except on terms of equity and justice between them.

(19) Soldiers of a company participating with us in a battle shall take turns with one another-

(20) (i) The believers shall exact vengeance for one another where blood is shed in the Way of God.

(ii) The God-fearing believers are under the best and most correct guidance.

(21) No polytheist shall give neighbourly protection to the property and life of the Quraish, nor shall intervene in such matters against a believer-

(22) Whoever shall wrongfully kill a believer, the evidence being clear, shall be killed in retaliation, unless the heir of the murdered agrees to blood-money. The entire strength of the believers shall be against the offender; nothing is permissible to them except to enforce law against him-

(23) It shall not be permissible for a believer, who holds b: what is in this document and believes in God and in the Las Day, to help a wrongdoer or to provide him shelter- Whoever shall help him or shelter him, upon him shall be the curse o God and His wrath on the Day of Resurrection, and neither ransom nor compensation shall be accepted from him.

(24) Whenever you have a dispute in some matter its reference shall be made to God and to Muḥammad.

(25) The Jews shall contribute to the expenses of war along-with the believers so long as they fight jointly-

(26) The Jews of Banū ‘Awf shall he a community alongwith the believers- For the Jews shall be their religion and for the Muslims shall be their religion- This includes their allies and themselves except a person who shall do wrong or act treacher­ously ; he shall ruin none but his own person and his house-hold.

(27) For the Jews of Banū al-Najjār (the terms) shall be the same as for the Jews of Banū ‘Awf.

(28) For the Jews of Banū al-Hārith (the terms) shall be the same as for the Jews of Banū ‘Awf.

(29) For the Jews of Banū Sā’idah (the terms) shall be the same as for Jews of Banū ‘Awf.

(30) For the Jews of Banū Jusham (the terms) shall be the same as for the Jews of Banū ‘Awf-

(31) For the Jews of Banū ū al-Aws (the terms) shall be the same as for the Jews of Banū ‘Awf,

(32) For the Jews of Banū ‘Tha‘labah  (the terms) shall he the same as for the Jews of Banū ‘Awf, except a person who shall do wrong or act treacherously ; he shall ruin none but his own person and his household-

(33) Jafnah, a sub-clan of Tha‘labah , shall be (in the same position) as they are.

(34) (i) For Banū al-Shuṭaibah shall be the same (terms) as for the Jews of Banū ‘Awl-

(ii) Obedience is distinct from defiance

(35) The allies of Tha‘labah  shall be (in the same position) as they are.

(36) The intimate friends of the Jews shall be (in the same position) as they are

(37) None of them shall go out to war except with the permis­sion of Muhammad ; however, none shall be restrained from taking vengeance for wounds.

(38) (i) He who shall slay a person unawares shall slay him-self and his household except who has been wronged.

(ii) God is the guardian of its (document’s) truest contents

(39) (i) The Jews shall bear their expenses and the Muslims shall bear their expenses

(ii) They shall mutually help one another against those who shall wage war against the people of this document.

(iii) There shall be mutual counselling and well-wishing among themselves.

(iv) Obedience is distinct from defiance-

(v) A person shall not be responsible for his ally’s treachery

(vi) The oppressed shall be helped.

(40) The Jews shall contribute to the expenses alongwith the believers, so long as they fight jointly.

(41) The valley of Yathrib shall he inviolable for the people of this document.

(42) The protected person shall be as the man himself so long as he shall do no harm and shall not act treacherously.

(43) No woman shall be granted neighbourly protection with-out the consent of her people.

(44) (i) Whenever among the people of this document shall arise any incident or a dispute likely to cause trouble, it shall be referred to God and to Muhammad the Messenger of God.

(ii) God is the guardian of the most scrupulous and the truest of what is in this document.

(45) No neighbourly protection shall be granted to the Quraish nor to those who shall help them.

(46) They shall mutually help one another against whoever shall attack Yathrib.

(47) Whenever they shall be called to participate in a peace treaty and to adhere to it, they shall participate in it and adhere to it. And when they shall call for the same, it shall be binding on the Muslims, excepting one who shall fight for the cause of religion.

(48) Each group shall be responsible for its part from the side which shall be towards them.

(49) (i) The Jews of al-Aws, their allies and themselves shall have the same treatment as the people of this document to­gether with complete obedience to the people of this document-

(ii) Obedience is distinct from defiance.

(iii) The earner of wrongdoing earns it only against himself.

(iv) God is the guardian of what is the most upright and the truest in this document.

(50) (1) This document shall not intervene to protect a wrong-doer or a traitor, lie who shall go out shalt be safe, and he who shall sit still shall be safe in Madīnah, except he who shall dc wrong and shall act treacherously.

(ii) God is the protector of those who obey and behave scrupulously and Muḥammad is the Messenger of God.

Study of the Constitution

Authenticity- The whole document constitutes one complete constitution. Its text, style, diction and archaic Arabic indicate that its authorship was the same- It is an authentic document- Apart from lbn Isḥāq, its full text has been reported by most reliable narrators such as al-Zuhrī and Ibn Khaithmah as quoted by Ibn Zaniwaih and lbn Sayyid al-Nās, respectively. Its important articles have been reported in the “six most authentic” books of Ḥadīth: Ṣaḥīḥ of Bukhārī, Ṣaḥīḥ of Muslim, Jāmi’ of Tirmidhī, Sunan of Nisā’ī, Sunan of Abū Dāwud, Sunan of Ibn Mājah, and also in the Musnad of Ibn Hanbal, in the Sunan of Dārimī and al-Muṣannuf of ‘Abd al-Razzāq. Historians such as lbn Sa’d, al-Ṭabarī, al-Balādhurī, al-Khaṭīb al-Baghdad), al-Maqdisī, al-Zurqānī, al Maqrīzī have also reported it- Ibn Manẓūar, the great lexicographer has also mentioned it-

Wellhausen among the Orientalists has made a detailed study of the document and has given reasons for its authenti­city.’[10] Montgomery Watt also accepts its genuineness.[11] Ibn Ḥajar, a scrupulous critic, has expressed his reservation on its impec­cable authenticity without giving reasons. He could not persuade himself to accept article 26 which declares the Jews to be “a community alongwith the believers”. Here “community” meant a political community- Ideologically speaking, the Jews were monotheists and had belief in one God, vis-a-vis the polytheists and infidels of Madīnah- The internal and external evidence reveals that the Constitution is an authentic document. It does not contain anything contrary to the fundamentals of Islam. The non-Muslims under Muslim rule on the three old continents of the world were given the same treatment as envisaged in this earliest constitutional document.

Date- The earliest sources of Islam generally state that the Constitution of Madīnah was drawn up in the beginning of the first year of the Hijrah. According to a report of Anas as recorded by Bukhārī, the document was written in the house of his parents, which implies that it was framed before the construction of the Mosque of the Holy Prophet at Madīnah.12[12] A number of Orien­talists have made a critical study of the Constitution.[13] Well­hausen and Caetani, after having brought enormous evidence and strong arguments, have placed the document before the battle of Badr. Caetani has also met objections of Grimme who argued for a date after Badr.

The Constitution contains fifty articles. The Orientalists, following Welhausen, have counted them forty-seven.[14] Hamid­ullah has counted fifty-two clauses, but for the sake of conformi­ty with European writers he has divided certain clauses into two by the signs of a and b. Not satisfied with the above counting the present writer, after making a careful study of the document, has counted fifty articles. Some of them have been divided into paras in accordance with the modern framing of constitutions and legal codes. The reasons for this departure are as follows: “This is a Constitution” has been counted as No. 1, while Watt leaves it without numbering apparently considering it as a part of the Preamble. It does not seem to be so because the consti­tuents of the Constitution are essential parts of the document.

The article “A believer shall not take as an ally the freed-man .. -” is No- 13, because it is a self-contained article- Hamidullah counts it as a part of article No. 12 even against the numbering of the Orientalists.

The clause “The God-fearing believers are under the best and most correct guidance” is para (ii) of article No. 20 because its subject is the mu’minūn mentioned in para (i) of the same article. Watt has also read it in the same manner, but Hamid­ullah has made it an independent article including the next independent article as its part (b). The article “He who shall slay a person unawares -..” is No. 38. Hamidullah and Watt have read it as part of the previous article, while it seems that it is a self-contained article which concerns a murderer who slays someone unawares. The clause “God is the guardian of its truest contents” is a part of the article. There are some other articles in the Constitution which have been described as such.

Previously all writers have considered abarr as an adjective of God while the present writer has considered it as an adjec­tive of the contents of the document, as it appears from its translation in the text. The clause “Each group shall he respon­sible for its part from the side which shall be towards them” is an independent article, because it is self-contained. It may not be considered as part of the previous one which speaks about participation of all constitutions in a peace treaty.

The Constitution comprises two parts. The first part consists of articles I to 24, and the second of articles 25 to 50. As stated earlier, the whole text of the Constitution was written in the first year of the Hijrah, before the battle of Badr. However, the second part of the Constitution has led some scholars to conclude that it was added to the first part after the battle of Badr.[15] Montgomery Watt has gone to the extent that it belonged “to the period after the elimination of Quraish,”[16] i.e after the battle of Khandaq. It is not correct. All Jews of Banū Qainuqā, Banū Naḍīr and Ban Quraiẓah had left Madīnah and there was no danger from the Jewish side. Then what was the need for the Jewish inclusion in the Constitution. His view is further based on the linguistic variations and repetition of the same articles at different places.[17] Hamidullah takes the glorious victory of Bach., Holy Prophet’s alliances with the neighbourly tribes, Banū Ḍamrah and Juhainah, rivalry of the Jewish tribes, as reasons which obliged the Jews to seek the protective cooperation of the Holy Prophet.[18]

The scholars mentioned above have not substantiated their views with historical evidence. On the contrary, circumstances of the period under reference positively confirm that pre-Badr period was more appropriate for the Jews to participate in the writing of the Constitution and to adhere to its contents than the post-Badr period- It is stated in the Qur’ān that the Jews expected that when the Prophet, spoken of in Deut. I8: 18, came, he would make them victorious over their disbelieving opponents:

And when there came to them a Book from Allah verifying that which they have, and aforetime they used to pray for victory against those who disbelieved.[19]

Under those expectations the Jews extended their help and co-operation to the Holy Prophet at his arrival in Madīnah. The Holy Prophet was also closer to the monotheist Jews than pagans and infidels of Madīnah and its surroundings. Practical mani­festation of this belief was his adoption of Bait al-Maqdis instead of the Ka’bah as his qiblah. Similarly, fasting on the tenth of Muḥarram was also adopted.[20] Out of respect he used to stand up when a bier of a Jew passed by.[21] lie disapproved that his Companions should exaggerate his qualities in comparison with Moses.[22] Bukhārī has recorded a very important statement which says that the Holy Prophet was pleased to adopt manners of the People of the Book in matters not commanded by God.[23]

Muslim-Jewish cordial relations, during the first year of the Hijrah, are further confirmed by the attitude adopted by the Quraish in connection with their aggressive policy against the Holy Prophet. Assessing the political situation at Madīnah, the Quraish felt they had better chances of winning over ‘Abd Allah b. Ubayy than in the Jews- The Quraish, seeking the support of ‘Abd Allah b. Ubayy, addressed him a letter and asked him to kill the Holy Prophet or expell him from Madīnah.[24] Because of these cordial and friendly relations during the pre-Badr period the Jews’ co-operation with the Holy Prophet in establishing federal government at Madīnah and in framing an agreed constitution, in which they even did not object to the mention of his Prophethood (articles I, 24, 44, 50).

It seems that the battle of Badr was a turning point in the Muslim-Jewish relationship. One month before this battle in the month of Sha’bān of the second year of the Hijrah, under Divine commandment, the Holy Prophet changed his qiblah from Bait al-Maqdis to the Ka’bah: “Turn then thy face towards the sacred Mosque.”[25] This offended the Jews. The Constitution guaranteed them religious freedom. However, their objectionable social practices and harmful conduct were criticised in the Qur’an and their evil intentions were exposed. This was againt their expectations. They had expected that the new prophet would justify their conduct and would preach others to follow it. This enraged the Jews. The glorious victory at Badr further aggravat­ed their frustration.

In the changed circumstances after the battle of Badr accord­ing to the assessment of the Quraish, they had better chances with the Jews than their previous supporter, ‘Abd Allah b. Ubayy. Now they addressed a letter to the Jews mentioning them as owners of weapons and fortresses and incited them to fight against the Holy Prophet.[26]

Banū Qainuqā’, the strongest and the bravest of the Jews, were the first to revolt againt the Holy Prophet. Ibn Sa’d reports that “they threw away the Constitution,” and “They were the first to betray it and act treacherously: ‘Fa kānū awwal man ghadara min al-Yahūd.”[27] Ibn Hishām and al-Ṭabari have also report­ed to the same effect from lbn Isḥāq: “Anna Banī Qainuqā’ kānū awwal Yahūd naqaḍū mā bainahum wa bain Rasūl Allāh wa ḥarabū fi mā baina Badr wa Uḥud.”[28] The above evidence makes it abun­dantly clear that the second part of the Constitution relating to the Jews was also written in the first year of the Hijrah, before the battle of Badr. After this battle, instead of co-operating in writing a Constitution, the Jews started violating and acting treacherously against what had already been accomplished.

Banū Naḍīr, after the battle of Uḥud, acted treacherously. Banū Quraiẓah renewed the agreement after the battle of Uḥud and violated both the agreements during the battle of Khandaq. It shows that both parts of the Constitution were written prior to the battle of Badr.

Some scholars have argued that the names of the three main Jewish tribes, Banū Qainuqā’, Banū Naḍīr and Banū Quraiẓah, have not been mentioned in the Constitution; therefore, they were not included in it. First of all the above historical evidence negates this view. Banū Qainuqā’ have explicitly been mentioned by name as the first Jewish tribe that betrayed the Constitution. If they were not included in the Constitution it was meaningless to state their betrayal. Secondly, the Jewish clans were grouped according to the Arab clans in whose districts they lived. Banū Naḍīr and Banū Quraiẓah have been mentioned as the Jews of Banū Aws and Tha‘labah , since they lived between Awsallah and Tha‘labah  b. ‘Amr b.’Awf[29]’ (articles 31-32). Banū Qainuqā’ were the allies of Banū Ḥārith of the Khazraj[30] and as such they were mentioned under article 28. In view of these circumstances, ‘Abd Allah b. Ubayy spoke on behalf of Banū Qainuqā’ and Sa’d b. Ma’ādh was an arbiter in the case of Banū Quraiẓah when they acted treacherously.

Ya’qūbī has recorded a statement according to which Banū Naḍīr and Banū Quraiẓah were originally not Jews. They were Arabs from a branch of the Judhām who had adopted Judaism.[31] Al-Mas’ūdī has also mentioned this fact.[32] In this event to group these Jewish clans according to the Arab clans seems more realistic.

Constituents of the Islamic State

The Constitution of Madīnah provided that the believers, the Emigrants from the Quraish, and the Muslims, the Helpers from Madīnah, their followers and political allies were one com­munity (nmmah wāḥidan).[33] Other peoples of Madīnah such as Jews, their followers and allies who submitted to the Constitu­tion were given the same treatment and equal rights (al-naṣr wa al-iswah).[34] They were declared as Ummah alongwith the believ­ers (ummah ma’a al-Mu’minīn).[35] The Constitution provided that even the polytheists in or around Madīnah who submitted to the Constitution were also its citizens; and the constitutional provisions were equally binding on them.[36] Hence the whole population of Madīnah, the Emigrants, the Helpers, the Muslims, the non-Muslims, the believers, the non-believers, the Jews and the polytheists became the constituents of the Constitution of Madīnah, and accepted the Holy Prophet as the final court of appeal.

Religious and Social Autonomy. Politically, the whole population of Madīnah constituted the state. Constitutionally, the different constituent religious groups were given religious and internal autonomy. The two major constituents, the Emigrants and the Helpers, were autonomous in following their pre-Islamic usages in matters of blood-wit and ransom of their captives.[37] The Jews were guaranteed religious freedom.[38] They were also free in mat­ters of blood-wit and ransom of captives.

Authority of the Holy Prophet

Head of State. Article 44 of the Constitution of Madīnah pro­vided that Muḥammad, the Holy Prophet of Islam, was the head of the state. It was binding on all people of the Constitution to refer all differences, administrative disputes and political issues to the Holy Prophet. Under this constitutional provision, all internal cases of law and order and external issues of war and peace were to he referred to him.

Commander-in-Chief. Article 37 of the Constitution provided that the citizens of the state, individually or collectively, were not allowed to go out to war without the permission of Muḥam­mad (p.b.u.h.). He was the sole authority in matters of war. Action could be taken against any person who would go out to war without his permission.

Chief Justice. Articles 24 and 44 of the Constitution provided that all legal disputes, judicial matters and litigations were to be referred to Muḥammad, the Holy Prophet (p.b.u.h). The Arabic “mahmakhtalaf tum fih min shay’in” (article 24) and “ishtijār” (article 44) are very comprehensive legal terms. They are applied to all sorts of legal, judicial, administrative, social and political contentions and disputes. These constitutional provisions made the Holy Prophet the chief justice of the state of Madīnah. The Constitution prescribed prerogatives and obligations of the ruler and the ruled. Its provisions were equally binding on the head of the state. History has recorded some cases which were brought against the Holy Prophet.[39]

In his capacity as the head of the state, commander-in-chief and chief justice, Muhammad the Holy Prophet wielded power unprecedented among pre-Islamic Arabs. The Arab monarchs of certain regions, the shuyūkh of different tribes and the malā of the city-state of Makkah had no parallel with the constitutional power of the Holy Prophet. The Muslims, naturally, were the most satisfied constituents at his constitutional position. The Helpers of Madīnah were tired of their pre-Islamic civil wars, fratricidal and internecine fightings and protracted disputes. By accepting his constitutional position they were happy to have an easily available central authority among them for the adjudication of their quarrels and disputes.

It is interesting to note that the Jews and the pagans of Madīnah accepted this constitutional authority of the Holy Prophet without accepting him as the Prophet, and without raising any objection to the mention of his Prophethood. It is important because the Quraish of Makkah did not agree to include his Prophethood in the agreement at Ḥudaibīyyah six years after the framing of the Constitution of Madīnah.[40] After the arrival of the Holy Prophet at Madīnah Arab tribal chiefs alongwith their tribesmen accepted Islam. This event gave a blow to the old social and political organisation based on tribal-ism. With the disorganisation of the tribal system the non-Muslim and pagan relatives of the Muslims found themselves in great difficulty for the adjudication of their disputes. The new Constitution clearly laid down that they could avail themselves of the centralised administration of justice, and in the protection of the central government provided in political matters they should not create obstacles in the way of its functioning. They were also required to hale no connection with the Quraish.

The Holy Prophet was unanimously accepted by all sections of the Madīnan society as the head of the community, chief justice and commander-in-chief of the state of Madīnah. With the promulgation of the Constitution the chaos and anarchy of tribalism was brought to an end. It was a revolutionary change. The people were provided with a central public institution for seeking justice. Instead of settling their disputes with individual power or with the support of their family. The centralised constitutional government gave birth to a well-organised and cohesive state which brought three continents of the old world under its rule within a very short period.

Dispensation of Justice

The constitutional government under the Constitution of Madīnah functioned satisfactorily during the first year and a half of its implementation.[41] All its components who willingly submitted to the Constitution worked jointly for its welfare and progress, each group performing its duties and invoking the Constitution in case of departure from any of its provisions. History has recorded many instances which show that the Jews submitted their disputes and complicated legal problems to the Holy Prophet accepting him as the chief justice of the state of Madīnah.

Ibn Isḥāq has reported the details of a case referred to the Holy Prophet by the Jews and has also reported his judicial judgment thereon.

Case History. A married man committed adultery with a married woman. The Jewish Rabbis gathered in Bait al-Midras (a Jewish religious seminary). After discussion and deliberations they decided to refer the case for adjudication to Muḥammad (p.b.u.h.) in accordance with the constitutional provision (arti­cles 24 and 44). The Rabbis also wanted to test the integrity of the Holy Prophet.

“If he prescribes tajbih (scourging with a rope of palm fibre smeared with pitch, the blackening of their faces, mounting on two donkeys with their faces to the animal’s tail), then follow him, for he is a king and believe in him. If he prescribes ston­ing for them, he is a prophet, so beware lest he deprive you of what you hold.” The Jews came to the Prophet and presented the case saying: “O Muḥammad! this married man has com­mitted adultery with a married woman. Give your judgment in

their case. We submit their case to you as judge.”[42]

Proceedings of the Case

Meeting with the Rabbis. The Constitution of Madīnah gua­ranteed religious autonomy to the Jews: “The Jews shall follow their religion” (article 26). Hence the Holy Prophet proceeded to record evidence from their authentic religious text — the Torah. He paid a visit to the Rabbis in Bait al-Midras and asked the Jews to arrange a meeting with their religious authorities. They produced ‘Abd Allah b. Ṣūriyā, Abū Yāsir and Wahb. b. Yahūdah and said they were their authorities and ‘Abd Allah h. Ṣūriyā was the most learned in Torah among their living authorities.[43]

Cross-Examination and Taking of Oath. After their statement the Holy Prophet put questions to them in cross-examination. Urging upon them the importance of the case he addressed Ibn Ṣūriyā : “In the name of God and in the name of glorious days of Banū  Isrā’il, state whether you know that God has prescribed in Torah stoning for married persons who commit adultery.” “Yes,” was his answer and he added, “they know very well, Abū al-Qāsim, that you are a Prophet sent (by God) but they envy you.[44]

Production of Text. The Holy Prophet asked them to produce the Torah. The most learned of the Rabbis sat there and started reading the text. He put his hand over the verse of stoning. ‘Abd Allah b. Salām (a convert from the Jews) struck the Rab­bi’s hand, saying: “This, Prophet of God, is the verse of ston­ing which he rufuses to read to you.” Thereafter the Jews admit­ted that such a text existed in the Torah.[45]

Before pronouncing his judgment, the Holy Prophet made further inquiry into the matter.

Causes of Suppressing the Law. During the proceeding of the case when the Jews tried to conceal the truth, which of course became manifest, the Holy Prophet asked the reason for sup-pressing the law of the Torah.

"Woe to you Jews," the Holy Prophet asked them: "What induced you to abandon the law of God which you hold in your hands. "They disclosed: "The sentence used to be carried out until a man of royal birth and noble origin committed adultery and the king refused to allow him to be stoned. Later another man committed adultery and the king wanted him to be stoned, but they said: `No, not until you stone so and so.' And when they said that to him they agreed to arrange the matter by tajbih and they did away with all mention of stoning and practising it. "After hearing the background of the suppression of the law of the Torah, the Holy Prophet said: "I am the first to revive the law of God, His book and to practise it."[46]

Judgment. On the basis of the evidence collected during his meeting with the Rabbis, their cross-examination, taking of oath, production of the text of the original law of the Torah and knowledge of the background of the suppression of the law of God, the matter became crystal clear to the Holy Prophet. He, therefore, pronounced his judgment that the adulterers should be stoned. `Abd Allah b. `Umar, the reporter of the case, re-ported that they were duly stoned and "I was among those who stoned them."[47]

Discrimination Before Law

Different groups of Jews in Madīnah were not treated equally before the law. The Jews of Banū Naḍīr were considered super­ior to the Jews of Banū Quraiẓah because of the high social status of the former. In case a man from the Banū Naḍīr was killed full blood-money was paid, but in case of Banū Quraiph only half of the blood-money was paid. The Jews filed a suit in the court of the chief justice of Madīnah, the Holy Prophet of Islam, and requested for his judgment on this very important social and legal issue. The Holy Prophet gave his judgment that Jews were equal before the law and there was no justification for discrimination between the Jews of Banū Naḍīr and Banū Quraiẓah.[48]

Dispute between A Muslim and A Jew

Once a Jew and a Helper (Muslim) discussed the question of superiority of Prophets inter se. During discussions the Jew pre­sented Moses in such a way as if he was superior to Muhammad (p.b.u.h.). The Helper could not tolerate it and gave him a slap. The Jew lodged a complaint against him in the court of the Holy Prophet. After hearing both the parties the Holy Prophet decided in favour of the Jew and by way of advice he said: "Do not exaggerate my superiority over other Prophets. On the day of Resurrection all people will go into a fit of faint. I shall be the first to wake up and see Moses standing beside the Throne of God the Almighty.[49]

Treason

The Quraish of Makkah did not believe in peaceful co-existence with the Muslims. First, they approached `Abd Allah b. Ubayy, an expected chief of the Aws and Khazraj before the Emigration, and head of the hyprocrites in Madīnah, and asked him to expel] the Prophet from Madīnah or face its serious con-sequences. "You have provided shelter to our man. By God, either you would kill him or expell him or we would attack you with our full force, and would destroy you and disgrace your women."[50] The sagacity, prudence and wisdom of the Holy Prophet foiled the first attempt of the Quraish directed towards creating dissension among the Companions, and `Abd Allah b. Ubayy failed to do anything for them in the face of growing influence of the Muslims. This was before the battle of Badr.

After the battle of Badr the Quraish approached other component of the Constitution, the Jews, and asked them to rise against the Holy Prophet or face serious consequences:

"You are equipped with weapons and have fortresses. You must fight with our man or we would do this and this, and nothing would prevent us from the ornaments of your women."[51]

The Holy Prophet gave the Jews full autonomy provided in the Constitution, decided legal cases with justice and did not give them any opportunity of complaint. But the Jews by nature were mischief-mongers. They responded positively to the Quraish. According to the Constitution, it was an act of high treason. Even then the Holy Prophet as head of state reminded them of the fate of the Quraish and warned them of the dire consequences that would follow. They reacted violently and said: "O Muhammad! you should not be deluded by the fact that you had a battle with people having no experience of war, and you won it. By God, when we fight, you would know that we were different people."[52] Thus they violated the Constitution and fought against the Muslims.[53]

Banū Qainuqā', the bravest of the Jewish clans,[54] were the first to betray the constitutional trust agreed upon between them and the Holy Prophet. They declared war and fought between the battle of Badr and Uḥud.[55]

Judgment. This act of high treason demanded capital punish­ment. The Holy Prophet, being the chief justice of the state, gave them an opportunity of defence, to fulfil all the judicial and legal requirements. 'Abd Allah b. Ubayy, an ally of the Qainuqā', appealed for their banishment. As head of the state, the Holy Prophet assented to this punishment and they were banished from Madīnah.[56]

Treachery of Banū Naḍīr

Violating the Constitution of Madīnah, Ka'b b. Ashraf, a leader of the Jews of Banū Naḍīr and a poet of repute, went to Makkah after the battle of Badr. He recited fiery verses and instigated the Quraish against the Muslims.[57] He also plotted against the Holy Prophet and was ultimately killed.

The Constitution provided that every component was allowed to accept blood-wit according to its previous usage. Its enforce­ment wss the duty of the state. `Amr b. Umayyat al-Ḍamarī killed two persons of Banū `Āmir in lieu of the Muslim killed at Bi'r Ma`ūnah. The Holy Prophet, as chief justice, did not approve the action of `Amr b. Umayyah and gave his judgment that blood-wits should be paid.[58] Banū `Āmir were the allies of Banū Nadīr. The Holy Prophet, as head of state, paid a personal visit to Banū Naḍīr for helping them to get blood-money for their allies. Instead of appreciating the judicial and executive efficiency of the state, Banū Naḍīr plotted against the life of the Holy Prophet.[59]

Violation of the Constitution

Banishment of Banū Qainuqā`, treachery of Ka'b b. Ashraf and violation of the Constitution by Banū Naḍīr had necessitated the renewal of agreement with the Jews. Band Quraiẓah agreed to renew the agreement but Banū Naḍīr refused to submit to the Constitution and also declined to conclude a new one.[60] This was tantamount to declaration of war. They took positions in their strong fotresses, where they were besieged by the Muslims. Ultimately, they surrendered to the Muslim forces.

Judgment. Breach of the Constitution and violation of the trust demanded capital punishment. But the Holy Prophet of Islam decided to banish them from Madīnah. Banū Naḍīr happily accepted his judgment and agreed to go into exile.[61]

Betrayal of Banū  Quraiẓah

Banū Quraiẓah were one of the components of the Constitution of Madīnah. They had also renewed it after the battle of Uḥud. During the battle of Khandaq (ditch) Ka'b b. Asad, the leader of the Quraiẓah, declined to help the invaders and reminded them of his pledge with the Muslims. Ḥuyayy b. Akhṭab, a banished leader of Banū Naḍīr, prevailed upon Banū Quraiẓah who decided to violate the Constitution and to support the invaders against the Muslims. The Holy Prophet sent Sa'd b. Mu'ādh and Sa'd b. 'Ubādah to remind them of their agree­ment.

Since they had decided to betray the agreement and to join the forces of the enemy, they answered: "We don't know who is Muhammad and what is the agreement."[62] They openly participated in the war against the state. After defeat they re-treated to their fortresses and brought alongwith them Ḥuyayy b. Akhṭab, the arch enemy of the Prophet.[63] The Holy Prophet sent 'Alī b. Abī Ṭālib as vanguard to Banū Quraiẓah. When he approached their fortresses they abused the Holy Prophet and gave him bad names. 'Alī could not tolerate it and reported it to the Prophet. Thereafter siege was laid which continued for twenty-five days.[64] When they were hard pressed by the siege they decided to surrender. They sent a message to the commander-in-chief of the Muslim forces the Holy Prophet of Islam, and requested him to appoint Sa'db. Mu'ādh, their old ally, as an arbiter.[65] On their request appointment of Sa'd was made and their case was referred to him for decision.

Judgment Announced. Sa'd b. Mu`ādh was the most competent person for arbitration. He took leading part in framing the Con­stitution of Madīnah and was witness to the fact that Banū Quraiẓah signed it with their free will. He was also witness to the fact that Banū Quraiẓah renewed the agreement without internal or external pressure. He was their dependable ally and was fully conversant with their religious laws and social usages and norms. Keeping in view the above background, their crime and the constitutional provision, Sa'd pronounced his award in the following manner which was in accordance with the law of the Torah : "I pronounce my award about them that their men should be slain, their properties distributed, their children and women be made war captives."[66] The state and the Jews submit­ted to the judgment which was carried out.

Dispute Over the Converts

On the banishment of Banū Naḍīr, a dispute arose between the Jews and the Anṣār whether the adolescents of the latter who were converted to Judaism should depart with the Jews or stay with their parents. The case was referred to the chief justice of Madīnah, the Holy Prophet. It was not a political or social issue. It was purely a religious matter which necessitated revela­tion. The famous injunction of the Holy Qur'ān: "There is no compulsion in religious affairs"[67] was revealed. The case was decided accordingly.[68]

Debts of the Jews

The Holy Prophet adhered to the Constitution so strictly that even the defeat of the enemies did not deprive them of their right to recover a debt, accrued in a lawful manner. The follow­ing two cases would substantiate this fact.

Treachery of the Jewish tribe of Banū Qainuqā` was established. Consequently, order was passed for their expulsion. On hearing the judgment they filed another suit for the recovery of their debts, where they pleaded: "We have debts to recover whose date of payment has not yet reached." The Holy Prophet tried the case, examined the evidence and made inquiries from the respondents. On the right of the Jews being established, the Holy Prophet announced his judgment: "Capitalise them (debts) at a discount."[69]

On the expulsion of Banū Naḍīr the above situation was repeated. They also requested in the Court of the Holy Prophet: "Different people owe us debts whose date of payment has not yet reached." The Holy Prophet, after examining the evidence, ordered: "Capitalise them (debts) at a discount."[70]

It is clear from the foregoing that the judiciary set up under the Constitution of Madīnah functioned perfectly so long as its components remained loyal to it. When they violated its pro-visions and acted against a constitutional government, the offenders were put to trial and cases of high treason and treachery were decided keeping in view all the constitutional, judicial and legal requirements. It is certain that the Jews would have never been expelled had they remained loyal to the Con­stitution of Madīnah.

Before concluding discussion on the judiciary under the Con­stitution of Madīnah, it will be illuminating to compare the Code of Civil Procedure 1908 (Act V of 1908) in force in Pakis­tan with the Code of Civil Procedure adopted by the state of Madīnah in respect of the following matters, namely : (a) sum­moning and enforcing the attendance of any person and examin­ing him on oath ; (b) requiring the discovery and production of documents ; (c) receiving the evidence on affidavits; and (d) issuing Commissions for the examination of witnesses or docu­ments. It is interesting to note that the, procedure adopted by the Holy Prophet as chief justice has resemblance with the Code of Civil Procedure, 1908, as adopted by the State of Pakistan.

The cases quoted above provide ample evidence of the fact that the judicial system set up by the Holy Prophet measured up to the Code of Civil Procedure of the twentieth century. Attention is particularly invited to the details of the first case cited under the heading "Dispensation of Justice".

References