One of the great political documents in Islamic history is what has been known as ‘Al-Wathiqa’. It has been considered by Islamic and Muslim scholars and thinkers as the constitution of the first Islamic state established by Prophet Muhammad in Al-Madinah in 622. The purpose of this paper is to examine the main Clauses of this document along with brief commentaries on their main ideas. The objectives of this examination are threefold. The first is to show the importance of this document in understanding the Islamic constitutional law. In my commentaries I will emphasize and argue that there are, at least, twenty main principles that we can infer from this document, which include the following: ‘The Sovereignty of the Islamic State’, ‘Unity’, ‘Independence’, ‘Diversity’, ‘Conduct, or the Rules of War’, ‘Loyalty’, ‘Fighting Poverty’, ‘Fighting Injustice’, ‘Fighting Corruption and Bondage’, ‘The Right to Rebellion or Revolution’, ‘Search, or Striving, for Peace’, ‘Freedom of Religion’, ‘Believing in Capital Punishment’, ‘The Right of Minorities’, ‘The Rule of Law’, ‘Sanctuary’, ‘Immigration’, ‘Privacy Right’, ‘Security and Defense’, ‘Respect for International Law’, and ‘The Supremacy of Al-Shari’ah’ for Muslims. The second purpose of this examination is to study this document from a contemporary perspective and also to examine its ‘ideological concept’. The ideological concept of state simply means a state which is based on an ideology, or ‘set of ideas’, such as the Islamic state which was established by Prophet Muhammad. And the third purpose of this examination is to encourage all students of politics and constitutional law specialists, as well as politicians, to revisit the concept of the ‘ideological state’ and to study it objectively. For the purpose of examination and commentary, I have distributed the twenty Clauses under eight provisions. Each provision deals with a different subject and emphasizes different principles. After each provision I will make a few comments and offer some explanations of the Clauses and their underlying meaning.
Al-Wathiqa is an Arabic term that simply means ‘the document’. Historically, it refers to a document called Al-Wathiqa, which was a social contract between all members of the community in Al-Madinah during the time of the Prophet Muhammad.1 One could argue that it is the first ‘Human Rights Document’ in the history of mankind. Or to use the modern political phraseology one could argue that it was the first state constitution written by Muhammad, the Prophet of Islam, and all representatives of the tribes and the clans in that region when he established the first Islamic state in Al-Madinah.
Al-Wathiqa was a legal document governing relations between three major political groups (or communities) in Al-Madinah. These three main political groups were called: Al-Muhajirin (those believers of Islam who migrated with the Prophet from Makkah to Al-Madinah); Al-Ansar (those residents of Al-Madinah who became believers of Islam
ISSN 1360-2004 print/ISSN 1469-9591 online/03/010103-18 2003 Institute of Muslim Minority Affairs DOI: 10.1080/1360200032000073021
and who welcomed and helped Al-Muhajirin when they came to their city); and the Jews or the non-Muslims who were residents of Al-Madinah at that time. These three main political groups consisted of nine small tribes (or clans). Each tribe had its own values, customs, and traditions (see Provision II below). One of the main objectives of this legal document was to explain the rights, commitments, duties, and responsibilities of each group within the boundaries of this new Islamic state. Another main objective of the writing of this document was to respect and accommodate the uniqueness of each group within the general principles of Islamic law.
Provision I: Sovereignty, Unity, and Independence
The main ‘Clauses’ in this provision are as follows:
I (1). This is a document from Muhammad, the Prophet, (governing the relations)
between the believers and Muslims of Quraysh and Yathrib (another name for
Al-Madinah), and those who followed them and joined them and struggled
with them. I (2). They are one community (ummah)to the exclusion of all men (i.e. mankind).
Commentary
These two Clauses stress three main principles: ‘sovereignty’, ‘unity’, and ‘independence’ of the new Islamic state (a state here means a territorial entity controlled by a government and being inhabited by a population). First, ‘sovereignty’ means that the new political community had the right to do whatever it wanted within its own territory. That is, it has the power to make decisions that cannot be overruled by any other body. Sovereignty, today, is a fundamental principle that defines the interactions between the members of the international system. It also means that the government is the supreme lawmaker in its own territories. Therefore, one could argue that the Islamic state was free, by virtue of its sovereignty, to govern as it wished within its own boundaries and to formulate its own external policies, except where these were limited by self-approved treaty obligations. It also meant that the Islamic state could not allow, without its own consent, other countries, or any other international organization, to make or apply their own rules within its territory. But at the same time it had the corresponding obligation not to intervene in the internal affairs of other states or compromise their territorial integrity. The new state that was established by Prophet Muhammad in Al-Madinah was a sovereign state based on the law which was accepted by all participants in writing this historical document. Or, as stated in Clause I (1), ‘This is a document from Muhammad, the Prophet, (governing the relations) between the believers and Muslims of Quraysh and Yathrib, and those who followed them and joined them and struggled with them’.2
The second principle was ‘unity’. This principle states that citizens are one people and form an indivisible union. One of the main purposes of this document, of course, was to unify the new Islamic state including all the political groups and tribes therein. The main purpose of course was to establish a new community. As Clause I (2) states, ‘They are one community (ummah)to the exclusion of all men’. It meant that all groups would exert all rational and conscious efforts toward the voluntary creation of a larger and stronger political community. It was an attempt to bring all political parties together to establish one powerful state. This search for unity was one of the main objectives among all citizens in the Islamic state.
This new state consisted of all political units, tribes, and clans in that region including Muslims (from Quraysh and Yathrib) and non-Muslims (mainly Jews and polytheists). All of them constituted one united ummah (nation). It was open for every one who wanted to join. It was a new Islamic state, based on the Islamic law and the respect to all other religions, customs and traditions. It was a new state based also on the consent of all citizens who would form a government and decide on the powers that the government could exercise. If the government exercised powers beyond those granted to it by the terms of this document, it was acting illegally and citizens had the right to object.
The third principle upheld by the new Islamic state was ‘independence’. Actually, this document could be called the document of the ‘Declaration of Independence’. It was based on the fundamental belief in ‘liberty’, ‘the rule of law’, and ‘justice for all’. Or, to put it differently, in the modern political language, one could say that this document could be called ‘the Basic Law of the Islamic State’, or ‘the Constitution’ which governed all the citizens and residents (immigrants) in the new Islamic state. It was the social contract among all people who accepted this document and abided by it. This document established a new community ruled by a government. One can ask: what kind of government was it? The leaders of this new community recognized that the government is power, and therefore, the government had to be constitutional. This constitutional government has limitations on its power, which is organized and distributed by law. In other words, it is not a government with unlimited power, nor a government at the whim or uncontrolled discretion of the power holders, nor a government that has no rules or those subject to change without any notice or regular procedures. It was also not a government which did not undertake to recognize or assure any substantial body of liberties or rights for its citizens.
Provision II: Diversity, the Conduct of War, and Loyalty
The main ‘Clauses’ in this provision are as follows:
II (1). The Quraysh Muhajirin, according to their present custom, shall pay the blood money within their number and shall redeem their prisoners with the kindness and justice common among believers.
II (2). The Bani Awf, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers.
II (3). Bani al Hdrith (Ibn al Khazraj), according to their present custom, shall pay the blood money they paid hitherto and every section shall redeem its prisoners with kindness and justice common among believers.
II (4). Bani Saidah, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers.
II (5). Bani Jusham, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers.
II (6). Bani al Najjdr, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the
kindness and justice common among believers. II (7). Bani Amr ibn Awf, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers. II (8). Bani al Nabit, according to their present custom, shall pay the blood money
they paid hitherto, and every section shall redeem its prisoners with the
kindness and justice common among believers. II (9). Bani al Aws, according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers.
Commentary
These Clauses emphasize three main principles: ‘diversity’, ‘the conduct, or the rules, of war’, and ‘loyalty’. The first of these principles that Islam recognizes is: ‘diversity’. It holds that social/cultural differences should be acknowledged and respected and that these differences are a source of strength and a legitimate basis of self-interest. Islam encourages people to celebrate their differences and to appreciate them. Diversity exists whenever people acknowledge their differences and interact with each other based on those differences. Of course, this concept is relative to time and space. For instance, diversity, currently in the United States, refers primarily to ethnic and racial distributions among people (as opposed to, say, class, or religion, or occupational differences). The Islamic state does recognize diversity in the society and more than that it does respect the different traditions, even those which Islam may disagree with. This document addressed all nine groups individually, including the Muslims, the converts, the Jews, and the polytheists; and recognized their religions, customs, traditions; and even encouraged each one of them to implement their customs and traditions with the kindness and justice to be common among the believers. The preservation of the cultures and the customs of each community is essential for the Islamic state to succeed and prosper.
The second principle which the above Clauses recognize is: the ‘conduct, or the rules, of war’. I am defining the concept of war here not in the same way as many Western philosophers and thinkers have done. For instance, not as Thomas Hobbes who argued that war ‘is the natural condition of humankind, the state of nature is a time of “war of all against all”’.3 Nor as Karl Marx who defined it as ‘… a way of acquiring economic benefits from other states. The victors acquire access to raw materials, living space, cheap labor, expanded markets’.4 And also, not as Margaret Mead, who argued that war ‘is a cultural habit that, once learned, is passed on from generation to generation’.5 Here, war simply means the way human beings have preferred to settle their disputes by the use of armed force. It means the outright violent clashes between two, or more, states. Carl Von Clausewitz argued that war is ‘the continuation of politics by other means’.6
Since war is politics by other means, so to speak, and since war is an art, as Baron De Jomini stated in his famous work The Art of War,7 war is: ‘always to be conducted according to the great principles of the art’.8 It is a fact, therefore, that almost all states, in one way or another, prepare for war. I would argue that it would be unwise for any rational leader to ignore this fact. Or to quote the ancient Chinese philosopher Sun Tzu, two and a half thousand years ago, from his now-classic book also entitled The Art of War, declared: ‘The art of war is of vital importance to the state. It is a matter of life and death, a road either to safety or to ruin. Hence under no circumstances can it be neglected’.9
It is also a fact that we are living in a world which is unstable. It is a world in which the strong do not respect the weak. It is a world in which war is normal, or as James
D. Barber in his publication The Book of Democracy,10 states: ‘Throughout history, war has been normal. From the year 1496 B.C. to 1861 A.D., in 3,357 years, there were 227 years of peace and 3,130 years of war, or thirteen years of war to every year of peace’.11 Barber encourages countries to be prepared for war, because war is a complicated business and sometimes it is necessary. Barber puts it this way: ‘When government goes to war, it must fight for its survival—and for the survival of its citizens. War demands activism, technology, organization, secrecy and intelligence, planning, assignments, mutual trust, and radical inspiration, war may, at times, be necessary’.12
For these reasons, as mentioned by the ancient Chinese philosopher Sun Tzu, James
D. Barber, and others like them throughout the history of mankind, this document emphasized the importance of this principle and how war should be conducted. The Al-Wathiqa document stressed that there are certain rules that the citizens of this new Islamic state would have to abide by whenever they were in war. For instance, defending the Islamic state is the responsibility of all citizens and freeing the ‘prisoners of war’ is essential and a priority. The Islamic state is obliged to engage in wars only in very limited circumstances, such as self-defense, and under very restricted conditions and rules of engagement. In the case of the ‘prisoners of war’, the Islamic state is required to treat those prisoners with ‘justice and kindness’. The wathiqa in the above Clauses states, very clearly, that in the case of war, each section within the state ‘shall redeem its prisoners with … kindness and justice’. In other words, during the time of war, the Islamic state must be guided by two main principles which are: kindness and justice, especially in settling the issue of the ‘prisoners of war’. And, recognizing diversity, the Clauses state for each community ‘… according to their present custom, shall pay the blood money they paid hitherto, and every section shall redeem its prisoners with the kindness and justice common among believers’.13
The third principle that the above Clauses recognize is: ‘loyalty’. To start with, one could emphasize that the very definition of loyalty is subject to varied interpretations, because opinions and general attitudes, rather than specific overt acts, are often questioned. For this reason, procedural safeguards are all the more important. Based on this fact, Islam recognizes loyalty in general. For instance, Islam recognizes people’s loyalty to their clans and tribes and considers these social institutions as an integral part of the Islamic state structure. However, Islam differentiates here between two different types of loyalty: The ‘blind loyalty’, or al-asabiyyah, and the ‘positive loyalty’, or al-nousarah. Islam, in principle, is against any asabiyyah, ‘blind loyalty’, to any groupings. As the Prophet stated clearly: ‘Whoever advocates al-asabiyyah is not one of us’. Islam, on the other hand, supports and protects all useful and productive social groupings and associations. Islam differentiates between ‘loyalty’ to a person’s tribe, clan, or state on the one hand, and what the document referred to as ‘blind loyalty’ or al-asabiyyah, which is the extreme irrationality or the radical side of loyalty. The latter usually leads to discrimination, racism, and may even lead to disloyalty which will threaten the internal security of the state.
Islam encourages people to be proud of their state and support it but at the same time they should not be loyal and supportive of oppressive regimes. Islam also accepts all other bonds, which come below the bond of faith and are not in contradiction with the Islamic faith, as long as they would serve the community and help to establish a system of internal security among all people in the Islamic state. For instance, the new Islamic state would organize the way these communities should deal with each other in case of an accidental killing. If one of its members accidentally killed anyone, it is the joint responsibility of all members to pay the blood money (a just compensation to the victim’s family). This was the custom before Islam, and the new Islamic state confirmed this custom. The main objective of this custom is to bring the people of the community closer together and unite them especially in times of crises. In another way, the new Islamic state encouraged collective responsibility and solidarity in all situations. This rational practice of the concept of ‘state’s loyalty’ was introduced, for the first time, by the Islamic state and is a common practice in the modern states. For instance, the dangers of Communist subversion and espionage during the Cold War resulted in the tightening of security regulations throughout the Western World. Actually, the United States went even farther by adopting more drastic measures than its allies. All Western governments recognized the disloyalty (blind loyalty) of the Communist party members and eliminated them from all key positions. Private organizations in the United States, such as labor unions, worked to achieve independence from communist factions. No one could dare declare himself or herself a communist and expect to win a position in the political or even the social system.
Furthermore, as the Cold War against Communism developed after World War II, the United States ‘required its public employees to take an oath that they were not members of the Communist party’. The United States Supreme Court upheld such a requirement in the case of Garner v. Board of Public Works (1951).14
Provision III: Elimination of Poverty, Injustice, Corruption, and Bondage
The main ‘Clauses’ in this provision are as follows:
III (1a). Believers shall not leave anyone destitute among them by not paying his
redemption money or blood money in kindness.
(1b). A believer shall not take as an ally against him the freedman of another
Muslim. III (2). The God-fearing believers shall be against the rebellious or anyone who seeks to spread injustice, or sin, or enmity, or corruption between believers; the hand of every man shall be against him even if he be a son of one of them. III (3). A believer shall not slay a believer for the sake of an unbeliever, nor shall
he aid an unbeliever against a believer. III (4). God’s protection is all-embracing, the least of them may give protection to a stranger on their behalf. Believers are friends and protectors one to the other, to the exclusion of outsiders.
Commentary
These Clauses deal with four major challenges facing the new Islamic state, namely: ‘fighting to eliminate poverty’, ‘fighting to end injustice, ‘fighting all kinds of corruption’, and freeing from bondage by recognizing ‘the right to rebel or revolt’. The first principle which the above Clauses emphasize is: ‘fighting to eliminate poverty’. The questions here are: what is poverty? how can we eliminate it? and is it possible to do so?
Poverty has been defined, by social scientists and economists, in both absolute and relative terms. ‘Absolute poverty’ refers to having too little income to buy the necessities of food, shelter, clothing, and healthcare, whereas ‘relative poverty’ suggests that people are poor if they have much less than the average person in their society has, even if they can afford the necessities of life.15
Social scientists and economists also differ on the main causes of poverty. Three types of explanations have been offered by these scholars: economic, political, and cultural. First, the economic cause of poverty stresses that the major cause of poverty is the lack of jobs and low wages paid for many jobs. It is also due to an overall failure to produce enough goods and services. Second, the political cause of poverty stresses that the major cause of poverty is a question of how wealth is distributed in society. It is also because the rich and powerful need the poor. For instance, Herbert Gans argued that:
… the existence of poverty serves the interests of many who are more rich and powerful than the poor. Without poverty, much of society’s dirty work would not get done; the prices on many goods and services (like housecleaning) would be much higher; many welfare workers, government bureaucrats, pawnbrokers, and police officers would be unemployed; merchants could not unload their shoddy furniture, dented canned goods, or day-old bread.16
Thus, suggests Gans, ‘in many direct and indirect ways the existence of poor people contributes to the comfort of the middle and upper class’.17 And the third explanation of poverty is put forth by anthropologists. For instance, Oscar Lewis suggests that ‘a distinct “culture of poverty” develops as a reaction to political and economic exclusion in a society’.18
The citizens of the new Islamic state in Al-Madinah were encouraged to fight poverty, help the needy, and protect the weak. The motto was ‘No citizen should be in a state of destitution’. The Islamic state rejects the political and cultural explanations of poverty. It believes that poverty is an economic situation that can be controlled and managed to enable all citizens to live in respect and dignity. The type of poverty which the Islamic state is trying to fight and may be, finally, eliminate is the ‘absolute poverty’ which refers to having too little income to buy such necessities as food, shelter, clothing, or healthcare. On the other hand, ‘relative poverty’, which means that people are poor if they have much less than the average person in their society has, even if they can afford the necessities of life, is a reality of almost every society.
Second, the citizens of the new Islamic state were also encouraged to stay united and fight any kind of injustice. In the Islamic state, justice is an ultimate objective that all citizens should receive. The search for justice, in the Islamic state, is always of primary importance. Its goals will always be to establish an ideal relationship among citizens based upon their reasonable, civilized expectations and a maximum of ‘free individual self-assertion’, as well as an ideal relationship between citizens and the state. Justice is a possible result of decisions made by those who have been granted authority to determine what constitutes fair treatment. Many citizens may say that an injustice has been done to them, or to those for whom they feel compassion, when they have not been treated fairly by the people in positions of authority. For this reason the citizens of the new Islamic state were encouraged to stop and even fight (if necessary) aggressors, wrongdoers, tyrants and all those who try to spread injustice. This new document recorded that the system must deal with its people equally and without discrimination. Establishing the Islamic state was to enable all people to strive to be kind and friendly to one another, and to be protectors for each other. The Islamic system should be a system based on cooperation and brotherhood. Treating people fairly is a must in the Islamic state. And a state will not be Islamic without justice. Treating people fairly means showing respect for the most fundamental principle of human rights: the rule of law. Since people will not be able to achieve justice without the prior establishment of the principle of law, that is why this document was written and accepted by all political groups in the new Islamic state.
Third, the citizens of the new Islamic state were also encouraged to stay united and fight all kinds of corruption. Whether it is an impairment of integrity, virtue, or moral principle (such as depravity), or an inducement to wrong by improper or unlawful means (such as bribery), or a departure from the original or from what is pure or correct.
Fourth and finally, the citizens of the new Islamic state were also encouraged to resist and work to change all kinds of injustice and corruption by all legal means necessary. The emphasis in these Clauses was on ‘the right to rebel or revolt’. The question here is: when do the citizens have the right to rebel against the government? And when could a revolution be justified? Revolution, in the political science, is a concept that has many meanings. Here I am using this concept to mean massive or fundamental changes in a society introduced through the use of force. The three main characteristics of a revolution are as follows: (1) use of force (or violence) to make the desirable change in a society; (2) make major changes in the governmental organization, personnel, and policy output; and (3) make these changes permanent.
The Clauses also emphasized when citizens in the Islamic state could not rebel. Rebellion and revolution are prohibited if the Islamic state is just, fair, and works aggressively to advocate and advance Islamic interests and to help and protect Muslims. Revolution is also prohibited if the purpose of change seeks to spread injustice, or sin, or enmity, or corruption between believers. Actually, citizens of the state were required to fight and resist this kind of change. Clause III (2) states that: ‘The God-fearing believers shall be against the rebellious or anyone who seeks to spread injustice, or sin, or enmity, or corruption between believers’. Revolution is prohibited if the purpose of change is un-Islamic. For instance, changing an Islamic government and replacing it with a secular one will not be acceptable. Clause III (3) states: ‘A believer shall not slay a believer for the sake of an unbeliever, nor shall he aid an unbeliever against a believer’.
Provision IV: Striving for Peace, Freedom of Religion, and Respect for Life
The main ‘Clauses’ in this provision are as follows: VI (1). The peace of the believers is indivisible. No peace shall be made when believers are fighting in the way of God. Conditions must be fair and equitable to all. VI (2). In every foray a rider must take another behind him. VI (3). The believers must avenge the blood of one another shed in the way of God. VI (4a). The God-fearing believers enjoy the best and most upright guidance. (4b). No polytheist shall take the property or person of Quraysh under his protection nor shall he intervene against a believer. VI (5). Whosoever is convicted of killing a believer without good reason shall be
subject to retaliation unless the next of kin is satisfied (with blood money),
and the believers shall be against him as one man, and they are bound to
take action against him. VI (6). It shall not be lawful to a believer who holds by what is in this document and believes in God and the last day, to help an evil-doer or to shelter him. The curse of God and His anger on the day of resurrection will be upon him if he does, and neither repentance nor ransom will be received from him.
Commentary
The above Clauses deal with three main principles which are: ‘striving for peace’, ‘freedom of religion’, and ‘capital punishment’. First, concerning the concept of peace, in Islam, peace is indivisible. ‘The peace of the believers’, Clause IV (1) stated, ‘is indivisible’. However, no peace should be reached without conditions. These conditions for peace must be always fair and equitable with whomever the Muslims are dealing with. Citizens should be united against their enemy and they should defend themselves by all legal means necessary. They should also continue fighting until fairness and equality are achieved.
The second principle that these Clauses emphasized is: ‘freedom of religion’. The Islamic state recognized and respected all religions at that time and did not interfere with their practices. Actually, all religious groups were encouraged to practice whatever they believed in within the law. The Document mentioned, as an example, polytheism (belief in, or worship of, more than one god). The Document stated it very clearly that polytheism is legal in the Islamic state. The only condition that this document emphasized was that polytheists (and other religious minorities) have to respect and abide by the law of the land. Is this not what any other constitutional government will do or has been doing? Actually many modern democracies (if not all) impose numerous restrictions on the practices of the religious groups. For instance, there is a clause in the First Amendment of the United States Constitution which states, very clearly, that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. The question has been: what does this clause mean? It sounds very obvious that the phrase ‘free exercise’ simply means what it says—the government is not supposed to interfere with the ideas and practices of religious groups. But this is not the case. The United States Supreme Court, for instance, ruled on numerous occasions that: ‘Americans have the right to believe but they do not have the right to practice every thing they believe in’. Professor James Wilson, in his book American Government, summarized this position as follows:
Having the right to exercise your religion freely does not, however, exempt you from laws binding other citizens, even when the law goes against your religious beliefs. A man can not have more than one wife, even if (as once was the case with Mormons) polygamy is desirable on religious grounds. For religious reasons, you may oppose being vaccinated or having blood transfusions, but if the state passes a compulsory vaccination law or orders that a blood transfusion be given to a sick child, the courts will not on grounds of religious liberty prevent such actions from being carried out. And in an issue that remains bitterly controversial to this day, the courts have allowed local authorities to close down schools which were not accredited by the state.19
In 1936 two young members of Jehovah’s Witnesses, aged ten and twelve, were expelled from a Pennsylvania public school for refusing to salute the flag. Their parents had sought an exception to the flag salute requirement. When that was turned down, they sued on the grounds that their free exercise rights were being violated. In supporting the school district, the Supreme Court said that religious liberty does not free people from governmentally imposed political obligations.20 All what these examples, and others of course mean, is that if secular democracies can justify their restrictions on religious minorities, why should other state systems be barred from doing so? Why shouldn’t the religious groups have some restrictions imposed upon them within the Islamic state? This document, however, shows how Islam emphasizes the principle of ‘freedom of religion’, which allows the religious minorities to live freely and to practice their belief in the Islamic state under the constitution. In other words, the relationship between Muslims and non-Muslims, who are living in the Islamic state, is specified in the Islamic law—the Qur’an and the Sunnah.
The third principle that these Clauses emphasized is: the belief in ‘capital punishment’. This is concerning any crime for which death is a possible penalty. Does the death penalty constitute cruel and unusual punishment and therefore violate the rules of modern and humane societies? Today, this is a very disputed issue in many countries. Opponents of the death penalty do not believe that it has any deterrent value and feel that it constitutes a barbaric act in an otherwise civilized society.21 Supporters of the death penalty, on the other hand, maintain that it serves as a deterrent to serious crime and satisfies society’s need for justice and fair play. It is effective, and more than that it is a necessary deterrent to crime. This document stated that whoever was convicted of killing a citizen without good (legal) reason, then they shall be subject to punishment by the law. Thus, if somebody kills without legal reason, the killer should be killed according to the Islamic law. However, capital punishment is not an absolute punishment for it could be commuted by mutual agreement between the two parties through compensation or even forgiveness. Justice, fairness, and respect for life were all valued and recognized in the first constitution of an Islamic state.
Provision V: Minority Rights
The main ‘Clauses’ in this provision are as follows: whoever behaves unjustly and sinfully, for they hurt but themselves and
| V (1). | To the Jews who follow us belong help and equality. They shall not be |
| wronged nor shall their enemies be aided. | |
| V (2). | The Jews shall contribute to the cost of war so long as they are fighting |
| alongside the believers. | |
| V (3). | The Jews of the Bani Awf are one community with the believers (the Jews |
| have their religion and the Muslims have theirs), their freedmen and their | |
| persons, except those who behave unjustly and sinfully, for they hurt but | |
| themselves and their families. | |
| V (4). | The Jews of Bani al Naijir are like the Jews of Bani Awf |
| V (5). | The Jews of Bani al Hdrith are like the Jews of Bani Awf. |
| V (6). | The Jews of Bani Sgidah are like the Jews of Bani Awf. |
| V (7). | The Jews of Bani Jusham are like the Jews of Bani Awf. |
| V (8). | The Jews of Bani al Aws are like the Jews of Bani Awf. |
| V (9). | The Jews of Bani al Thalabah are like the Jews of Bani Awf, except for |
their families. V (10). Jafnah, a clan of the Thalabah, are as themselves. V (11). The Jews of Bani al Shutaybah are like the Jews of Bani Awf. Righteousness
is a protection against sinfulness. V (12). The freedmen of Thalabah are as themselves. V (13). The close friends of the Jews are as themselves. V (14a). The Jews must bear their expenses and the Muslims their expenses. Each
must help the other against anyone who attacks the people of this docu
ment. They must seek mutual advice and consultation, and righteousness
is a protection against sinfulness.
(14b). A man is not liable for his ally’s misdeeds. The wronged must be helped. V (15). The Jews must pay with the believers so long as war lasts. V (16). The Jews of al Aws, their freedmen and thus themselves, have the same
standing with the people of this document and the same loyalty from the
people of this document. Righteousness is the protection against sinfulness
and each person bears responsibility for his actions. God approves of this
document.
Commentary
The above Clauses stress a very important principle which is: ‘the right of the minorities in the Islamic state will be protected’. Here I am using the term ‘minority rights’ to mean that the majority should rule, but at the same time it has to guarantee the rights of the minorities to practice whatever they believe in, within the law. In many ways, this principle of ‘minority rights’ has been in conflict with the principle of ‘majority rule’ and the reconciliation of the majority rule with minority rights has been one of the great dilemmas of the modern state. If ‘50% plus 1’ was the only rule for state decision making, the majority would be free to do whatever it wished to a minority group. If majority rule is not an acceptable absolute principle, then neither is minority rights. If the government gives all rights to all minorities–that is, gives all minority groups in society the right to disobey the government—then one no longer has a society. Rather, one has a war of all against all. Each of us, after all, is a minority of one.
But where then does one draw the line? What minorities are to be respected and in relation to what rights? What kind of majority rule should we have? Much of the debate on the nature of government centers on the following question: ‘What rights are so important that they should be protected from the ordinary procedures of government, whereby the wishes of the larger number becomes the rule for all?’ Kenneth Prewitt and Sidney Verba, in their book An Introduction to American Government, argued that ‘historically several kinds of minorities rights have been singled out for protection from the wishes of the majority. These rights are: (1) the right to free speech, a free press, and freedom of assembly; (2) the right to freedom of religion; (3) the right to have one’s property protected from arbitrary acts of the government; and, (4) the right to have one’s person protected from arbitrary acts of the government’.22
So, let us look into this document to examine the ‘rights of minorities’ in the new Islamic state. In the new Islamic state, the Jews were the largest non-Muslim minority and participated in the establishment of the new Islamic state. Because of that, almost one-third (sixteen Clauses) of this document is designated to the role of the Jews, their rights, and also their responsibility in this new community. The above Clauses show and emphasize the type of relationship between the Muslims and the Jews in the Islamic state. For instance, these Clauses:
Provision VI: Rule of Law, Sanctuary, Immigration, and Privacy
The main ‘Clauses’ in this provision are as follows: VI (1). Yathrib shall be a sanctuary for the people of this document. VI (2). A stranger under protection shall be as his host doing no harm and committing no crime. VI (3). A woman shall only be given protection with the consent of her family. VI (4). Quraysh and their helpers shall not be given protection. VI (5). This deed will not protect the unjust and the sinner. The man who goes forth to fight is safe and the man who stays at home in the city is safe, unless either has been unjust and sinned. God is the protector of the righteous and God-conscious, and Muhammad is the Apostle of God (may God bless him and grant him peace).
Commentary
These Clauses stress four main principles: ‘rule of law’, ‘sanctuary’, ‘immigration’, and ‘privacy’. One of the basic and great principles of any constitution is the principle of ‘rule of law’. Although the words ‘rule of law’ are not explicitly mentioned in this document, the mere existence of this document, in itself, implies the strong belief in the rule of law. The idea is one of the most important legacies of the implementation of the Islamic law especially during the era of the Prophet Muhammad. Here I am using this concept to mean a basic principle of government that requires both those who govern and those who are governed to act in accordance with the established law. It simply means that no one is above the law, and that the new Islamic government is a ‘government of law and not of men’. The rulers, like the ruled, are answerable to the law. This means that the Islamic government and its officers are always subject to and never above the law. It means also that the Islamic government was based on a body of law applied equally and by fair and balanced procedures, as opposed to the rule by the elites or the aristocrats in which the whims of those in power would decide policy or resolve disputes. This means that no individual stands above the law, no matter what his or her background, status, religion, or office would be. Just as these laws address the behavior of the general public, they are also applied to the behavior of public officials.
How important is this constitutional principle? It is very important to every society. It is an essential condition for achieving any other objective. The rule of law has its greatest impact on the day-to-day operations of any government. Almost every action that government agencies undertake deals, in one way or another, with the law of the land. Finally, what this Document is simply saying is that all citizens of the new Islamic state believed in the principle of fairness: that all individuals are entitled to the same legal rights and equal protection regardless of who they are.
The second principle emphasized in these Clauses is ‘sanctuary’. It is explicitly mentioned in Clause VI (1) which states that: ‘Yathrib shall be a sanctuary for the people of this document’. This means that the new Islamic state shall be sacred, safe, and inviolable for all who join it and become citizens. This meant that Al-Madinah was a place which is not violated, its people are safe and secure, its animals are not to be hunted, and its trees are not to be cut down. It meant Al-Madinah is a place of refuge and protection for those who are oppressed or mistreated. These Clauses intended to ensure the internal security of Al-Madinah and prevented any wars or conflict within its boundaries.
The third principle emphasized in these Clauses is: ‘immigration’. The new Islamic state was not a nation of immigrants, so to speak, but rather it was a state that welcomed immigrants. According to contemporary international law, the legal status given to each nation’s resident aliens is to some extent fixed by certain generally accepted rules. These basic rules are: each nation decides for itself what persons, if any, it will admit as resident aliens; once they are in residence the nation need not accord them the same privileges and rights that its citizens enjoy; but it must guarantee its resident aliens a certain ‘minimum standard of justice’ in the protection of their rights of person and property’.23 Immigration means the admittance of a person who is not a citizen of a state for the purpose of establishing permanent residence. Bear in mind that the contemporary international law emphasizes that ‘no state is obligated to receive migrants’.24 However, the above Clauses, especially Clause VI (2), make it very clear that ‘strangers’ (meaning non-citizens or as we call them today ‘immigrants’) can live legally and safely in the new Islamic state but they have to respect the law of the land. In other words, the Islamic state welcomed all immigrants with ‘open arms’. It had an open door policy regarding all people who sought its help and support as long as they came legally and willing to accept, respect, and abide by the Islamic laws. This document imposed only a few conditions on the new immigrants. These conditions are:
(1) immigrants should ‘do no harm and commit no crime’ (see Clause VI (2)); (2) ‘Women shall only be given protection with the consent of her family’ (see Clause VI (3)), which was to disallow the practice of abduction of women; and (3) ‘Quraysh and their helpers shall not be given protection’ (see Clause VI (4)). Bear in mind that the Quraysh were in a ‘state of war’ with the new Islamic state when this document was written.
These conditions and restrictions which the Islamic state imposed on the new immigrants were far more humane than those many modern nations implement today. For instance, ‘in 1968, when Kenya began to expel the Asians, many of them decided to go to England, their country of citizenship, which was already jittery about a “color” problem due to large-scale immigration of non-whites from Commonwealth countries. The British Parliament reacted quickly by imposing very strict limits on the number of British subjects of Asian origin who could enter England annually from Kenya’.25 ‘The British immigration restrictions on non-whites from the Commonwealth in the 1960s conclusively showed that the British empire had always been a white man’s empire, but it was easier to admit that fact after its demise than during its existence.’26
In the United States there were, and still are, a lot of restrictions on immigration. For instance, ‘the immigrants who came to America in a swelling tide from 1850 to the 1920s often encountered social and economic discrimination. The Irish, for instance, were initially despised and given the meanest jobs to do, but they quickly made their way into political life and used their political skills to improve their economic and social position’.27
The Chinese workers who were brought in 1850, largely as contract workers by the operators of mines and railroads, were at first welcomed; but as their numbers increased they came under ‘fire’ from organized labor. In 1882 the US Congress passed the ‘Chinese Exclusion Act of 1882 which prevented persons from China and Japan from coming to the United States to prospect for gold or to work on the railroads or in factories in the West’.28 Also, in 1942, President Franklin D. Roosevelt signed an executive order requiring the establishment of ‘relocation’ camps for virtually all Japanese Americans living in the United States. The Japanese Americans were required to dispose of their property, usually at below-market prices. They were subjected to a curfew, excluded from certain ‘military areas’, and, finally, ordered to report to ‘assembly’ centers, from where they were evacuated to the relocation camps, or, as they came to be known, ‘internment camps’. The US Supreme Court upheld these actions.29
Another example from the United States is the ‘Welfare Act of 1996’, which denied to aliens, both legal and illegal, the right to apply for food stamps or for most welfare benefits under almost all circumstances. The 1996 Immigration Act added to the ‘Welfare Act’ by denying, and permitting states to deny, most other benefits to illegal aliens.30
The fourth principle emphasized by these Clauses is: ‘privacy’. It means, in the general sense, the right to be left alone within the law. It is the right of every person in the society to be free from unwanted state intrusion. The above Clauses, especially Clause VI (5), emphasize the right to ‘privacy’. They consider privacy an essential and fundamental right. The only exceptions are: (a) during the time of war such as the case with the Quraysh in Clause VI (4). ‘Quraysh’, here, meant the enemy of the new Islamic state. The Quraysh, at the time this document was written, were waging war against all Muslims and their allies. In other words, the document stated that none of its citizens should protect the enemies, nor help them; (b) the other exception of the ‘right to privacy’ is protecting evil or the unjust. This document will not protect the unjust and the sinner. And anyone who broke the law would be punished regardless of who they were.
It is essential to bear in mind that this is the only legal document in the history of humanity that emphasized this principle of ‘right of privacy’ explicitly. For instance, even though this right is one of the underlying conditions of a free society, there is no mention of it in either the main body of the United States Constitution nor its Bill of Rights. It is actually a relatively new concept in the United States and all European countries. In the United States, it is a judicially created doctrine encompassing an individual’s decision to use birth control devices in a court case (1965).31 In 1965, the Supreme Court of the United States declared, for the first time, that Americans have ‘a right of privacy’. This judgment arose from a case known as ‘Criswald v. Connecticut’, which declared as unconstitutional the state of Connecticut law, which prohibited the use of birth control devices even by married couples. In the United States, until 1965, using birth control devices was considered to be a crime, even if people used them in the privacy of their bedrooms.
Provision VII: Security, Defense, and Respect for International Law
The main ‘Clauses’ in this provision are as follows:
VII (1). The contracting parties are bound to help one another against any attack
on Yathrib. VII (2a). If they are called to make peace and maintain it, they must do so; and if they make a similar demand on the believers, it must be carried out except in the case of one engaged in combat for the sake of the religion.
(2b). Everyone shall have his portion from the faction to which he belongs.
Commentary
These Clauses emphasize two main principles, ‘security and defense’, and the ‘respect of international laws, treaties, and covenants’. The main objective of the principle of ‘security and defense’ is to provide for the protection of the new Islamic state and to protect its interests at home and abroad. It meant also that all citizens should commit themselves to defend their country from any armed aggression. The above Clauses emphasized this point very clearly by stating that all parts agreed that an attack against one part of this new state would be considered an attack against all. These Clauses emphasize the commitment of all political parts of the Islamic state (Muslims, Jews and polytheists) to help and support each other against any attack on the whole Islamic state. All political parties that signed this document are bound and obligated to help and cooperate with each other especially when there is an attack on any part of the Islamic state. All of them recognized that the state’s security was their single biggest responsibility. Clause VII (1) states this: ‘The contracting parties are bound to help one another against any attack on Yathrib (the new Islamic state)’.
The second principle, which is emphasized by these Clauses, is: the ‘respect of international laws, treaties, and covenants’ that the Islamic state had ratified with other states. Here I am using the term ‘international law’ to mean the law that applies in the relationships between nations, or between the citizens of one nation and either the government or individual citizens of another nation. What the above Clauses are emphasizing is that the Islamic state will respect all international laws which respect its sovereignty and all the treaties which it has ratified. Any treaty which has been signed by the Islamic state must be respected and implemented fully. One of the main components of the Islamic state’s foreign policy was to seek peace and stability and, at the same time, encourage other nations to consider these two policies as the ultimate objectives of their foreign policies. As stated by Clause VII (2a), ‘If they are called (meaning the citizens of the Islamic state) to make peace and maintain it, they must do so; and if they make a similar demand on the believers, it must be carried out’. This means that the main goal is to make peace and maintain it. The only exception is in the case ‘of one engaged in combat for the sake of the religion’ (Clause VII (2)).
Provision VIII: Supremacy of Al-Shari’ah
The main ‘Clauses’ in this provision are as follows:
VIII (1). Whenever you differ about a matter, it must be referred to God and to Muhammad. VIII (2a). None of them shall go out to war save with the permission of Muhammad.
(2b). But he shall not be prevented from taking revenge for a wound. He who slays a man without warning slays himself and his household, unless it be one who has wronged him, for God will accept that.
VIII (3). If any dispute or controversy likely to cause trouble should arise, it must be referred to God and to Muhammad, the Apostle of God (may God bless him and grant him peace), God accepts what is nearest to piety and goodness in this document.
Commentary
This provision of the Document emphasizes an important principle, which is: the ‘supremacy of al-shari’ah’. This principle is what has been called, in contemporary societies, and especially in the United States as, ‘The Supremacy Clause Principle’. It is a basic constitutional principle in any legitimate and sovereign state. This principle deals with what remains a touchy question in every political system. The main question here is: in a dispute between, for instance, the tribes and the central government, who or what prevails? The answer that these Clauses provided is often referred to in the constitutional law as ‘The Principle of Supremacy’. This means that the Islamic state’s law, derived from the Qur’an, the Sunnah of Prophet Muhammad, and the treaties of the Islamic state, supersedes all other laws adopted by the tribes, clans, or any other subdivision of the state, and is therefore the supreme law of the land. As Clause VIII
(3) states: ‘If any dispute or controversy likely to cause trouble should arise, it must be referred to God and to Muhammad, the Apostle of God (may God bless him and grant him peace)’. This means that Islamic law takes precedence over any other law in the state. This also means that this document stands above all other forms of laws in the Islamic state. To put it another way, these Clauses established the predominance of the Islamic law whenever tribal, clan, and community legislation overlapped. Determination of whether such a conflict exists would rest in the hands of the court. In other words, the judgment, in solving conflict, among all parts in the Islamic state should be in the hands of an independent judiciary branch of government that subscribes to the principle of the supremacy of law.
Conclusion
Al-Wathiqa is the most outstanding political document in Islamic history. Indeed, it is the first modern written state constitution in the history of mankind. This paper is an invitation to all students of politics, constitutional law specialists, and politicians to revisit this neglected document that carries the ‘model of an ideological state’. It could offer the best alternative to the currently dysfunctional concept of the ‘nation-state’. Deriving principles from this model and applying them to the modern political systems may facilitate many communities—especially the Muslim communities—to establish their modern states successfully and maintain the highest standards of democratic principles and international law and order in the increasingly diverse and heterogeneous societies.
Iam thankful to the editors of the Journal of Muslim Minority Affairs for their constructive criticism and suggestions.
NOTES
p. 495.