Rethinking Halal: Critical Perspective on Halal Markets and Certification

Etymologically, Halal means 'permitted'. Looked at logically, everything should be considered as permitted unless or until proven otherwise. However, halal today pervades the life of most Muslim societies, for many reasons. Religiously, it corresponds to what many Muslims consider as the good performance of their beliefs. Economically, it creates new opportunities for business. Politically, it corresponds to times in which identity issues became paramount. Socially, it relates to the need to cope with new realities without losing one's right to define the norms of the community. Legally, it is linked to the framing of 'traditional' norms in modern terms and categories. The outcome is that nowadays, the principle has been inverted and everything is taken as non-halal until proven otherwise. A no-trust principle is assumed and nothing can be accepted until certified as halal by a relevant body. The phenomenon of halal is part of a process of 'positivisation' that directly affected Islam and Islamic normativity, often called the shariʿa. In a continuum stretching from the most local to the most global, and from the legal to the technical and quasi-managerial, we can illustrate the many forms taken by this positivisation process, In its first stage, this process resulted in the transformation of the shariʿa into 'Islamic law', that is, in a hierarchical, comprehensive, codified, state-centred, and unified system of positive rules of law. The example of the 2000 law governing khul' divorce in Egypt is paradigmatic of the transformation of the fiqh into Islamic law, that is, a norm originating from Islamic sources interpreted according to the procedures and standards of positive law. Another illustration can be drawn from the lawmaking process, which in many Muslim-majority countries included the shariʿa or the fiqh in constitutions as sources of legislation, showing that nowadays, the components of the shariʿa must be spelled out in the constitutional text in order to become legally meaningful and consequential within the realm of positive law. The arena of international law, e.g. several rulings of the European Court of Human Rights, can also prove illustrative, since it shows how courts do not refer to the shariʿa-per se, but to the shariʿa made-into-positive-law. A last illustration, that of the ruling of the International Criminal Court in the Al-Mahdi case, illustrates how the Islamic normativity, while being both reified and positivised, is at the same time made illegitimate with respect to international and globalised legal standards. In its second stage, the process of positivisation created and affected other types of norms. These include technical and managerial norms, which have had a deep and global impact on the governance of contemporary societies. This holds true for norms inspired by Islam and Islamic doctrine which, through this positivisation movement, were reconceptualised and transformed. Within a framework of normative hyper-densification of social life, the use of such technical and managerial norms, taking the form of indicators and standards, complements or conflicts with legal norms. Islamic finance is a first example. While the justification for the search for a specifically Islamic form of financing is derived from Muslim jurists' opinion that revenue is only considered legitimate if it is derived from a real sharing of the risks that have enabled the revenue to be generated, it has led to Islamic financial institutions offering a variety of products