Shariah’s Black Box

Additionally, to the extent that Shariah authorities are employed by a U.S. corporation to issue legal rulings on Shariah and, while serving in that capacity, issue rulings which include a call to Jihad against the United States, the corporations will not be wise to ignore the threat of criminal exposure. The important case on this point is the Supreme Court’s decision in New York Central v. United States, 212 U.S. 481 (1909). Federal prosecutors indicted a railroad company based on the conduct of an assistant traffic manager, who paid illegal rebates.[240] While corporations could be liable for breach of civil law duties, prior case law had established there was no criminal liability for corporations because as artifices of the law, they could not have the requisite mens rea and be prosecuted. The Court, however, took this opportunity to transport the concept of respondeat superior from tort law and import it hook, line, and sinker into the criminal law:

Applying the principle governing civil liability, we go only a step farther in holding that the act of the agent, while exercising the authority delegated to him to make rates for transportation, may be controlled, in the interest of public policy, by imputing his act to his employer and imposing penalties upon the corporation for which he is acting in the premises.

. . .

. . . [W]e see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. If it were not so, many offenses might go unpunished and acts be committed in violation of law where, as in the present case, the statute requires all persons, corporate or private, to refrain from certain practices, forbidden in the interest of public policy.[241]

One legal commenter has aptly described the legal landscape as it developed after New York Central:

Thus, as the Court announced the dawn of corporate criminal liability in Americawith an embrace of tort law, it simultaneously signaled to generations of prosecutors that arguments of necessity and public policy would, in the realm of corporate crime at least, carry great sway. Before too long, the expansion augured by New York Central swelled further. The influence of public policy arguments is evident in a series of later cases whose facts compelled prosecutors to argue for ever further expansions of liability and constrictions of defenses. While, for example, the New York Central decision suggested that criminal liability was appropriate when the misconduct “inured to the benefit of the corporations,” later decisions held that no such actual benefit was necessary to find criminal liability. Similarly, there became no limit to how low-ranking an employee could subject the employer to criminal sanction, as courts found that “the corporation may be criminally bound by the acts of subordinate, even menial, employees.” In one influential appellate case, the court frankly articulated the pragmatic nature of the rules relating to corporate criminal liability, rooting its considerations firmly in the holding of New York Central:

These results are certainly not startling. They are part of the law of respondeat superior and accepted as established principles in civil tort situations. They are a recognition that law as a useful tool must accommodate pure theoretical logic to the demands of common sense… It is a logical paradox that this creature of the law — the corporate entity — is created by law with the power to violate law.

Thus, there has been even some judicial recognition that corporate criminal law wears the garment of vicarious liability somewhat like an ill-fitting hand-me-down, but significantly, courts have accepted the tradeoffs between legal coherence and crime prevention.[242]

In the matter under discussion, it will be somewhat misguided for legal counsel to argue facilely in defense of their U.S.corporate clients that the Shariah authorities were employed strictly to issue legal rulings on financial matters and all other rulings fall outside the scope of their employment. Typically, criminal respondeat superior applies where the agent (i) committed a crime; (ii) within the scope of employment; and (iii) with intent to benefit the company.[243] Arguably, a crime was committed by advocating violent Jihad against the U.S. The problem with legal counsel’s defense on the “scope of employment” element is the fact that Shariah authorities have stated time and again that there is no separation between a ruling on commercial matters and one on Jihad. As illustrated by the very software “filters” employed in SCF, the legal rulings on prohibited vice industries are all part and parcel of the undivided whole of Shariah.[244] This explains the SCF legal ruling by many of the Shariah authorities that Muslims, including U.S. Muslims, should not invest in U.S. defense industries yet these same Shariah authorities praise and obligate Muslim investment in weapons for Muslim nations.[245] In other words, the ruling on weapons in the context of SCF is part and parcel of the Law of Jihad.[246] Finally, by definition, every legal ruling by a Shariah authority is for the achievement of Allah’s divine law and for the attainment of truth and therefore of benefit to all Muslims including the company’s in which they invest.