LENA SALAYMEH*
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
Comparing Islamic and International Laws of War:
Orthodoxy, “Heresy,” and Secularization in the
Category of Civilians†
This Article investigates how contemporary laws of war rationalize
civilian deaths. I concentrate on two specific legal constructions in war-
fare: the definition of civilian/combatant and the principle of distinc-
tion. (The categories of civilian and combatant should be understood as
dialogically constitutive and not entirely distinct. In addition, the cate-
gory of “civilian” is a modern one and premodern legal sources often do
not use one term to refer to noncombatants.) I focus on two significant
parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the
U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these
two legal issues, while remaining within the Islamic legal tradition.
To scrutinize the nature of this divergence, I compare al-Qāʿidah’s
legal reasoning to the legal reasoning of the U.S. military. I demon-
strate that the U.S. military diverges from orthodox international law
in ways that parallel how al-Qāʿidah diverges from orthodox Islamic
law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox
categories of civilians and expand the category of combatant, primarily
by rendering civilians as probable combatants. Based on this compara-
tive analysis, I argue that the legal reasoning of al-Qāʿidah (and other
militant Islamist groups) is as secular as it is Islamic; I call this fusion
secularislamized law.
INTRODUCTION
If there is an archetypical image of contemporary warfare, it is
that of dead civilians, not dead soldiers. Along with the reluctance
to publish images of dead soldiers, more pictures of dead civilians
* British Academy Global Professor, Oxford School of Global and Area Studies,
University of Oxford, England; Co-organizer, Decolonial Comparative Law Project,
Max Planck Institute for Comparative and Private International Law (Hamburg,
Germany). For their feedback, I thank Nathaniel Berman, Rhiannon Graybill, Eliav
Lieblich, Ralf Michaels, Dirk Moses, participants in the seminar of the Davis Center
for Historical Studies (Princeton University), attendees of the Kamel Center for the
Study of Islamic Law and Civilization lecture series (Yale Law School), and the an-
onymous reviewers.
† http://dx.doi/org/10.1093/ajcl/avab001
© American Journal of Comparative Law 2021. All rights reserved. For permissions, please
email:
This is an Open Access article distributed under the terms of the Creative Commons
Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits un-
restricted reuse, distribution, and reproduction in any medium, provided the original 136
work is properly cited.
, 2021] COMPA RING ISLAMI C AND I NTERNA TIO NAL LAWS OF WAR
circulate because contemporary warfare kills far more civilians
than soldiers.1 The rate of civilian deaths in recent wars has been
increasing, rather than decreasing.2 Historical research indicates that
from the eighteenth century to the twentieth century, wars resulted
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
in more military deaths than civilian deaths. 3 A United Nations re-
port published in 1996 estimated that “[i]n recent decades, the pro-
portion of war victims who are civilians has leaped dramatically from
5 per cent to over 90 per cent.” 4 While there are intense scholarly de-
bates on how to calculate civilian deaths, most scholars agree that the
proportion of civilian casualties is high and steadily increasing. 5 As
Valerie Epps concluded, “since the turn of the twentieth century, ci-
vilian deaths have outnumbered military deaths in nearly all wars.” 6
These general observations about warfare are also evident in con-
temporary state violence against “terrorism.”7 In 2015, Physicians
for Social Responsibility estimated that “the war [‘on terror,’ begun
in 2001] has, directly or indirectly, killed around 1 million people in
Iraq, 220,000 in Afghanistan and 80,000 in Pakistan, i.e. a total of
around 1.3 million.”8 The U.S. Department of Defense estimated
that approximately 7,000 U.S. soldiers were killed during “war on
terror” military operations between 2001 and 2021.9 By comparison,
the U.S. Department of State calculated that 235,769 people were
killed glo- bally by “terrorist” acts between 2006 and 2017.10
Regardless of the
1. On images of dead civilians and dead soldiers, see Sarah Sentilles, When We
See Photographs of Some Dead Bodies and Not Others, N.Y. TIMES (Aug. 14, 2018), www.
nytimes.com/2018/08/14/magazine/media-bodies-censorship.html.
2. Commentary about how warfare is transforming the contemporary world is
significant, but not directly relevant to this Article’s objectives. See, by way of example,
GRÉGOIRE CHAMAYOU, A THEORY OF THE DRONE (Janet Lloyd trans., The New Press 2015).
3. Valerie Epps, Civilian Casualties in Modern Warfare: The Death of the
Collateral Damage Rule, 41 GA. J. INT’L & COMP. L. 307, 326 (2013).
4. U.N. Secretary-General, Impact of Armed Conflict on Children, ¶ 24, U.N.
Doc. A/51/306 (Aug. 26, 1996).
5. For a critique of the 90% civilian casualty rate, see Adam Roberts, Lives and
Statistics: Are 90% of War Victims Civilians?, 52 SURVIVAL 115 (2010). For a discus-
sion of “the tremendous variation in the proportion of civilian casualties,” see Andrew
Barros & Martin Thomas, Introduction: The Civilianization of War and the Changing
Civil–Military Divide, 1914–2014, in THE CIVILIANIZATION OF WAR: THE CHANGING CIVIL–
MILITARY DIVIDE, 1914–2014, at 1, 2 (Andrew Barros & Martin Thomas eds., 2018).
6. Epps, supra note 3, at 329.
7. On the problematics of the term, see Charles Tilly, Terror, Terrorism,
Terrorists, 22 SOC. THEORY 5 (2004). See also Marie Breen Smyth et al., Critical
Terrorism Studies: An Introduction, 1 CRITICAL STUD. TERRORISM 1 (2008); Study: Threat
of Muslim-American Terrorism in U.S. Exaggerated, CNN (Jan. 6, 2010),
http://edition. cnn.com/2010/US/01/06/muslim.radicalization.study.
8. PHYSICIANS FOR SOC. RESP. (PSR), BODY COUNT: CASUALTY FIGURES AFTER 10 YEARS
OF THE “WAR ON TERROR” 15 (2015).
9. U.S. Dep’t of Def., Casualty Status as of 10 a.m. EST Jan. 4, 2021, www.de-
fense.gov/casualty.pdf.
10. U.S. Dep’t of State, Number of Casualties Due to Terrorism Worldwide
Between 2006 and 2017, STATISTICS PORTAL (2018), www.statista.com/statistics/202871/
number-of-fatalities-by-terrorist-attacks-worldwide.
, 13 THE AME RI CAN JOURNAL OF COMPARATIVE LAW [Vol.
(in)accuracy of these numbers, more civilians are being killed by the
“war on terror” than soldiers or victims of “terrorist” acts. Hence, con-
temporary state violence causes the deaths of more civilians than non-
state violence. The rates of civilian deaths from recent wars are so high
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
that Epps concluded, “the overall civilian toll from warfare belies the
notion that civilian war-related deaths and injuries are simply inci-
dental (or collateral) to legitimate military destruction and death.” 11
In addition to the staggering number of overall civilian deaths, the
high number of children and other probable noncombatants who
are killed suggests that these deaths are not incidental.
Appropriately, Alexander Downes asserted, “state violence against
noncombatants is largely the result of rational strategic calculations
rather than emo- tion, dehumanization, or irrational hatred.” 12 And
Bruce Cronin deter- mined, “most of the collateral damage inflicted by
the Western powers occurred not during heated battles or under
conditions of uncertainty brought about by the fog of war, but rather
after careful deliberation and planning, under circumstances that
were highly favorable to the attackers.”13 Civilian deaths are not
incidental, whether a state intends civilian deaths or intends attacks
with reckless disregard for “collateral” civilian deaths. Moreover, if
“collateral” civilian deaths are not incidental, then either the laws of
war disregard protecting ci- vilian lives or those laws are being
disregarded—or both.
This Article investigates how contemporary laws of war ration-
alize civilian deaths. I concentrate on two specific legal
constructions in warfare: the definition of civilian/combatant and
the principle of distinction. (The categories of civilian and combatant
should be under- stood as dialogically constitutive and not entirely
distinct.14 In addi- tion, the category of “civilian” is a modern one
and premodern legal sources often do not use one term to refer to
noncombatants.) I focus on two significant parties in contemporary
warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah
diverges from orthodox Islamic law on these two legal issues, while
remaining within the Islamic legal tradition. To scrutinize the
nature of this divergence, I compare al-Qāʿidah’s legal reasoning
to the legal reasoning of the
U.S. military. I demonstrate that the U.S. military diverges from
orthodox international law in ways that parallel how al-Qāʿidah di-
verges from orthodox Islamic law. Specifically, both the U.S. military
and al-Qāʿidah elide orthodox categories of civilians and expand the
category of combatant, primarily by rendering civilians as probable
combatants. Based on this analysis, I argue that the legal reasoning
11. Epps, supra note 3, at 348.
12. ALEXANDER B. DOWNES, TARGETING CIVILIANS IN WAR 10 (2008).
13. BRUCE CRONIN, BUGSPLAT: THE POLITICS OF COLLATERAL DAMAGE IN WESTERN ARMED
CONFLICTS 131 (2018).
14. HELEN KINSELLA, THE IMAGE BEFORE THE WEAPON: A CRITICAL HISTORY OF THE
DISTINCTION BETWEEN COMBATANT AND CIVILIAN (2015) (demonstrating the difficulty and
instability of distinguishing between civilians and combatants).
, 2021] COMPA RING ISLAMI C AND I NTERNA TIO NAL LAWS OF WAR
of al-Qāʿidah (and other militant Islamist groups) combines secular
logics and Islamic themes; I call this fusion secularislamized law.15
Not all modern Islamic law is secularized. Secularislamized law
is a hybrid form of modern Islamic law that is shaped by coloniality
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
(i.e., colonial systems of power that continue even after the formal
end of colonialism).16 Coloniality generates a logic of extermination
and dispossession; more specifically, coloniality invented a rational-
ization of civilian targeting that is premised on colonial difference.
Coloniality also generates secularism; secularism, despite its local
and historical variations, is a fluctuating ideology and array of prac-
tices that are neither neutral nor universalist. 17 This Article builds
upon decolonial critique by delinking from Eurocentrism and secular
prejudice in order to view laws of war from the perspective of colon-
ized peoples.18 Accordingly, I reject colonial/secular preconceptions in
legal studies, such as hierarchizing between state law and non-state
law or classifying legal traditions/systems exclusively based on geog-
raphy or culture. Furthermore, decolonial theorists view the “freedom”
and “progress” of colonial societies as established through the oppres-
sion of colonized societies.19 Correspondingly, I illustrate that secular
laws of war are legitimated through contemporary colonial violence.
By comparing state law and non-state law, this Article contrib-
utes to comparative law scholarship that moves beyond the state. 20
Nonetheless, this Article’s decolonial approach is relatively new,
15. I developed this term/concept many years prior to learning about Sherman
Jackson’s coining of the term “Islamic secular.” Jackson uses “Islamic secular” to “ex-
cavate” secular aspects of the historical Islamic tradition. However, since religion
and secularism are not transhistorical categories, I contend that “Islamic secular” can
only refer to modern phenomenon. More importantly, “secularislamized” is distinct
from “Islamic secular.” See Sherman Jackson, The Islamic Secular, 34 AM. J. ISLAMIC
SOC. SCI., no. 2, at 1 (2018). In addition, I use the term “secularislamized”
descriptively, ra- ther than normatively. For an example of a political project of
developing “Islamic secu- larism,” see Heba Raouf Ezzat & Ahmed Mohammed
Abdalla, Towards an Islamically Democratic Secularism, in FAITH AND SECULARISM 33
(Rosemary Bechler ed., 2004).
16. Noah De Lissovoy & Raúl Olmo Fregoso Bailón, Coloniality, in KEYWORDS IN
RADICAL PHILOSOPHY AND EDUCATION 83 (Derek R. Ford ed., 2019).
17. See Lena Salaymeh, The Eurocentrism of Secularism, WEST WINDOWS
(Sept. 14, 2020), www.uni-erfurt.de/philosophische-fakultaet/forschung/
forschungsgruppen/was-ist-westlich-am-westen/west-windows/26-the-eurocentrism-
of-secularism. On critical secularism theory, see TALAL ASAD, GENEALOGIES OF RELIGION
(1993). On the relationship between secularism and colonialism, see TIMOTHY
FITZGERALD, RELIGION AND THE SECULAR: HISTORICAL AND COLONIAL FORMATIONS (2007).
18. On decoloniality, see Walter D. Mignolo, Delinking, 21 CULTURAL STUD.
449 (2007).
19. Walter D. Mignolo, Epistemic Disobedience and the Decolonial Option:
A Manifesto, 1 TRANSMODERNITY 44 (2011). Gurminder Bhambra explains, “that the
modernity that Europe takes as the context for its own being is, in fact, so deeply im-
bricated in the structures of European colonial domination over the rest of the world
that it is impossible to separate the two: hence, modernity/coloniality.” See Gurminder
Bhambra, Postcolonial and Decolonial Dialogue, 17 POSTCOLONIAL STUD. 115, 118 (2014).
20. On non-state law, see Ralf Michaels, What Is Non-state Law?, in NEGOTIATING
STATE AND NON-STATE LAW: THE CHALLENGE OF GLOBAL AND LOCAL LEGAL PLURALISM 41
(Michael A. Helfand ed., 2015).
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
Comparing Islamic and International Laws of War:
Orthodoxy, “Heresy,” and Secularization in the
Category of Civilians†
This Article investigates how contemporary laws of war rationalize
civilian deaths. I concentrate on two specific legal constructions in war-
fare: the definition of civilian/combatant and the principle of distinc-
tion. (The categories of civilian and combatant should be understood as
dialogically constitutive and not entirely distinct. In addition, the cate-
gory of “civilian” is a modern one and premodern legal sources often do
not use one term to refer to noncombatants.) I focus on two significant
parties in contemporary warfare: al-Qāʿidah (aka Al-Qaeda) and the
U.S. military. Al-Qāʿidah diverges from orthodox Islamic law on these
two legal issues, while remaining within the Islamic legal tradition.
To scrutinize the nature of this divergence, I compare al-Qāʿidah’s
legal reasoning to the legal reasoning of the U.S. military. I demon-
strate that the U.S. military diverges from orthodox international law
in ways that parallel how al-Qāʿidah diverges from orthodox Islamic
law. Specifically, both the U.S. military and al-Qāʿidah elide orthodox
categories of civilians and expand the category of combatant, primarily
by rendering civilians as probable combatants. Based on this compara-
tive analysis, I argue that the legal reasoning of al-Qāʿidah (and other
militant Islamist groups) is as secular as it is Islamic; I call this fusion
secularislamized law.
INTRODUCTION
If there is an archetypical image of contemporary warfare, it is
that of dead civilians, not dead soldiers. Along with the reluctance
to publish images of dead soldiers, more pictures of dead civilians
* British Academy Global Professor, Oxford School of Global and Area Studies,
University of Oxford, England; Co-organizer, Decolonial Comparative Law Project,
Max Planck Institute for Comparative and Private International Law (Hamburg,
Germany). For their feedback, I thank Nathaniel Berman, Rhiannon Graybill, Eliav
Lieblich, Ralf Michaels, Dirk Moses, participants in the seminar of the Davis Center
for Historical Studies (Princeton University), attendees of the Kamel Center for the
Study of Islamic Law and Civilization lecture series (Yale Law School), and the an-
onymous reviewers.
† http://dx.doi/org/10.1093/ajcl/avab001
© American Journal of Comparative Law 2021. All rights reserved. For permissions, please
email:
This is an Open Access article distributed under the terms of the Creative Commons
Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits un-
restricted reuse, distribution, and reproduction in any medium, provided the original 136
work is properly cited.
, 2021] COMPA RING ISLAMI C AND I NTERNA TIO NAL LAWS OF WAR
circulate because contemporary warfare kills far more civilians
than soldiers.1 The rate of civilian deaths in recent wars has been
increasing, rather than decreasing.2 Historical research indicates that
from the eighteenth century to the twentieth century, wars resulted
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
in more military deaths than civilian deaths. 3 A United Nations re-
port published in 1996 estimated that “[i]n recent decades, the pro-
portion of war victims who are civilians has leaped dramatically from
5 per cent to over 90 per cent.” 4 While there are intense scholarly de-
bates on how to calculate civilian deaths, most scholars agree that the
proportion of civilian casualties is high and steadily increasing. 5 As
Valerie Epps concluded, “since the turn of the twentieth century, ci-
vilian deaths have outnumbered military deaths in nearly all wars.” 6
These general observations about warfare are also evident in con-
temporary state violence against “terrorism.”7 In 2015, Physicians
for Social Responsibility estimated that “the war [‘on terror,’ begun
in 2001] has, directly or indirectly, killed around 1 million people in
Iraq, 220,000 in Afghanistan and 80,000 in Pakistan, i.e. a total of
around 1.3 million.”8 The U.S. Department of Defense estimated
that approximately 7,000 U.S. soldiers were killed during “war on
terror” military operations between 2001 and 2021.9 By comparison,
the U.S. Department of State calculated that 235,769 people were
killed glo- bally by “terrorist” acts between 2006 and 2017.10
Regardless of the
1. On images of dead civilians and dead soldiers, see Sarah Sentilles, When We
See Photographs of Some Dead Bodies and Not Others, N.Y. TIMES (Aug. 14, 2018), www.
nytimes.com/2018/08/14/magazine/media-bodies-censorship.html.
2. Commentary about how warfare is transforming the contemporary world is
significant, but not directly relevant to this Article’s objectives. See, by way of example,
GRÉGOIRE CHAMAYOU, A THEORY OF THE DRONE (Janet Lloyd trans., The New Press 2015).
3. Valerie Epps, Civilian Casualties in Modern Warfare: The Death of the
Collateral Damage Rule, 41 GA. J. INT’L & COMP. L. 307, 326 (2013).
4. U.N. Secretary-General, Impact of Armed Conflict on Children, ¶ 24, U.N.
Doc. A/51/306 (Aug. 26, 1996).
5. For a critique of the 90% civilian casualty rate, see Adam Roberts, Lives and
Statistics: Are 90% of War Victims Civilians?, 52 SURVIVAL 115 (2010). For a discus-
sion of “the tremendous variation in the proportion of civilian casualties,” see Andrew
Barros & Martin Thomas, Introduction: The Civilianization of War and the Changing
Civil–Military Divide, 1914–2014, in THE CIVILIANIZATION OF WAR: THE CHANGING CIVIL–
MILITARY DIVIDE, 1914–2014, at 1, 2 (Andrew Barros & Martin Thomas eds., 2018).
6. Epps, supra note 3, at 329.
7. On the problematics of the term, see Charles Tilly, Terror, Terrorism,
Terrorists, 22 SOC. THEORY 5 (2004). See also Marie Breen Smyth et al., Critical
Terrorism Studies: An Introduction, 1 CRITICAL STUD. TERRORISM 1 (2008); Study: Threat
of Muslim-American Terrorism in U.S. Exaggerated, CNN (Jan. 6, 2010),
http://edition. cnn.com/2010/US/01/06/muslim.radicalization.study.
8. PHYSICIANS FOR SOC. RESP. (PSR), BODY COUNT: CASUALTY FIGURES AFTER 10 YEARS
OF THE “WAR ON TERROR” 15 (2015).
9. U.S. Dep’t of Def., Casualty Status as of 10 a.m. EST Jan. 4, 2021, www.de-
fense.gov/casualty.pdf.
10. U.S. Dep’t of State, Number of Casualties Due to Terrorism Worldwide
Between 2006 and 2017, STATISTICS PORTAL (2018), www.statista.com/statistics/202871/
number-of-fatalities-by-terrorist-attacks-worldwide.
, 13 THE AME RI CAN JOURNAL OF COMPARATIVE LAW [Vol.
(in)accuracy of these numbers, more civilians are being killed by the
“war on terror” than soldiers or victims of “terrorist” acts. Hence, con-
temporary state violence causes the deaths of more civilians than non-
state violence. The rates of civilian deaths from recent wars are so high
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
that Epps concluded, “the overall civilian toll from warfare belies the
notion that civilian war-related deaths and injuries are simply inci-
dental (or collateral) to legitimate military destruction and death.” 11
In addition to the staggering number of overall civilian deaths, the
high number of children and other probable noncombatants who
are killed suggests that these deaths are not incidental.
Appropriately, Alexander Downes asserted, “state violence against
noncombatants is largely the result of rational strategic calculations
rather than emo- tion, dehumanization, or irrational hatred.” 12 And
Bruce Cronin deter- mined, “most of the collateral damage inflicted by
the Western powers occurred not during heated battles or under
conditions of uncertainty brought about by the fog of war, but rather
after careful deliberation and planning, under circumstances that
were highly favorable to the attackers.”13 Civilian deaths are not
incidental, whether a state intends civilian deaths or intends attacks
with reckless disregard for “collateral” civilian deaths. Moreover, if
“collateral” civilian deaths are not incidental, then either the laws of
war disregard protecting ci- vilian lives or those laws are being
disregarded—or both.
This Article investigates how contemporary laws of war ration-
alize civilian deaths. I concentrate on two specific legal
constructions in warfare: the definition of civilian/combatant and
the principle of distinction. (The categories of civilian and combatant
should be under- stood as dialogically constitutive and not entirely
distinct.14 In addi- tion, the category of “civilian” is a modern one
and premodern legal sources often do not use one term to refer to
noncombatants.) I focus on two significant parties in contemporary
warfare: al-Qāʿidah (aka Al-Qaeda) and the U.S. military. Al-Qāʿidah
diverges from orthodox Islamic law on these two legal issues, while
remaining within the Islamic legal tradition. To scrutinize the
nature of this divergence, I compare al-Qāʿidah’s legal reasoning
to the legal reasoning of the
U.S. military. I demonstrate that the U.S. military diverges from
orthodox international law in ways that parallel how al-Qāʿidah di-
verges from orthodox Islamic law. Specifically, both the U.S. military
and al-Qāʿidah elide orthodox categories of civilians and expand the
category of combatant, primarily by rendering civilians as probable
combatants. Based on this analysis, I argue that the legal reasoning
11. Epps, supra note 3, at 348.
12. ALEXANDER B. DOWNES, TARGETING CIVILIANS IN WAR 10 (2008).
13. BRUCE CRONIN, BUGSPLAT: THE POLITICS OF COLLATERAL DAMAGE IN WESTERN ARMED
CONFLICTS 131 (2018).
14. HELEN KINSELLA, THE IMAGE BEFORE THE WEAPON: A CRITICAL HISTORY OF THE
DISTINCTION BETWEEN COMBATANT AND CIVILIAN (2015) (demonstrating the difficulty and
instability of distinguishing between civilians and combatants).
, 2021] COMPA RING ISLAMI C AND I NTERNA TIO NAL LAWS OF WAR
of al-Qāʿidah (and other militant Islamist groups) combines secular
logics and Islamic themes; I call this fusion secularislamized law.15
Not all modern Islamic law is secularized. Secularislamized law
is a hybrid form of modern Islamic law that is shaped by coloniality
20 October 2021
Downloaded from https://academic.oup.com/ajcl/article/69/1/136/6331204 by Oxford University user on
(i.e., colonial systems of power that continue even after the formal
end of colonialism).16 Coloniality generates a logic of extermination
and dispossession; more specifically, coloniality invented a rational-
ization of civilian targeting that is premised on colonial difference.
Coloniality also generates secularism; secularism, despite its local
and historical variations, is a fluctuating ideology and array of prac-
tices that are neither neutral nor universalist. 17 This Article builds
upon decolonial critique by delinking from Eurocentrism and secular
prejudice in order to view laws of war from the perspective of colon-
ized peoples.18 Accordingly, I reject colonial/secular preconceptions in
legal studies, such as hierarchizing between state law and non-state
law or classifying legal traditions/systems exclusively based on geog-
raphy or culture. Furthermore, decolonial theorists view the “freedom”
and “progress” of colonial societies as established through the oppres-
sion of colonized societies.19 Correspondingly, I illustrate that secular
laws of war are legitimated through contemporary colonial violence.
By comparing state law and non-state law, this Article contrib-
utes to comparative law scholarship that moves beyond the state. 20
Nonetheless, this Article’s decolonial approach is relatively new,
15. I developed this term/concept many years prior to learning about Sherman
Jackson’s coining of the term “Islamic secular.” Jackson uses “Islamic secular” to “ex-
cavate” secular aspects of the historical Islamic tradition. However, since religion
and secularism are not transhistorical categories, I contend that “Islamic secular” can
only refer to modern phenomenon. More importantly, “secularislamized” is distinct
from “Islamic secular.” See Sherman Jackson, The Islamic Secular, 34 AM. J. ISLAMIC
SOC. SCI., no. 2, at 1 (2018). In addition, I use the term “secularislamized”
descriptively, ra- ther than normatively. For an example of a political project of
developing “Islamic secu- larism,” see Heba Raouf Ezzat & Ahmed Mohammed
Abdalla, Towards an Islamically Democratic Secularism, in FAITH AND SECULARISM 33
(Rosemary Bechler ed., 2004).
16. Noah De Lissovoy & Raúl Olmo Fregoso Bailón, Coloniality, in KEYWORDS IN
RADICAL PHILOSOPHY AND EDUCATION 83 (Derek R. Ford ed., 2019).
17. See Lena Salaymeh, The Eurocentrism of Secularism, WEST WINDOWS
(Sept. 14, 2020), www.uni-erfurt.de/philosophische-fakultaet/forschung/
forschungsgruppen/was-ist-westlich-am-westen/west-windows/26-the-eurocentrism-
of-secularism. On critical secularism theory, see TALAL ASAD, GENEALOGIES OF RELIGION
(1993). On the relationship between secularism and colonialism, see TIMOTHY
FITZGERALD, RELIGION AND THE SECULAR: HISTORICAL AND COLONIAL FORMATIONS (2007).
18. On decoloniality, see Walter D. Mignolo, Delinking, 21 CULTURAL STUD.
449 (2007).
19. Walter D. Mignolo, Epistemic Disobedience and the Decolonial Option:
A Manifesto, 1 TRANSMODERNITY 44 (2011). Gurminder Bhambra explains, “that the
modernity that Europe takes as the context for its own being is, in fact, so deeply im-
bricated in the structures of European colonial domination over the rest of the world
that it is impossible to separate the two: hence, modernity/coloniality.” See Gurminder
Bhambra, Postcolonial and Decolonial Dialogue, 17 POSTCOLONIAL STUD. 115, 118 (2014).
20. On non-state law, see Ralf Michaels, What Is Non-state Law?, in NEGOTIATING
STATE AND NON-STATE LAW: THE CHALLENGE OF GLOBAL AND LOCAL LEGAL PLURALISM 41
(Michael A. Helfand ed., 2015).
