by Aaron W. Kuperman
Library of Congress
"Religious law" is a square peg that doesn't fit well in the round hole of American law. Perhaps reflecting the almost "sacred" doctrine of separation of church and state, American lawyers intuitively feel that if something is "religious" it therefore can't be law. The idea that individuals differentiated by race, religion, or ethnicity should therefore be subject to different laws is profoundly alien to American notions of civil rights. American law cataloging practices evolved reflecting the perspectives of the Anglo-American legal system. For the Library of Congress classification, the result is an almost total bias in favor of arrangement by jurisdiction, since from a Western perspective, laws are issued only by jurisdictions, not by religions or ethnic groups.
The Library of Congress classification has numbers for the established church in England (KD8600+) and the legal status of religious marriage ceremonies (e.g. KF514), and a host of newly created numbers for books on the involvement of civil courts in religious divorces (e.g. KE572). There is an ill-defined place in the schedules for "theocratic" and "canon" law (the yet to be written KB). The Library of Congress subject headings (LCSH) have a place for laws governing religious institutions ("Ecclesiastical law"), headings for the laws on separation of "Church and state," and a wide range of headings for canon and theocratic legal systems (such as Jewish and Islamic law).
Thirty years ago our subject cataloging tools had no problem with "religious law." In Western jurisdictions, religious courts were largely irrelevant to most civil litigation, and it was unheard of for anyone to try to manipulate the civil legal system to preserve a theocratic domestic relations regime. It was widely assumed that "modern," "secular" law would replace ethnic, religious, and customary law throughout Africa and Asia, so that "religious" law would increasingly be a subject for specialized studies, not legal practitioners.
Since the LC law schedules are based on jurisdiction, when religious law addresses commercial and domestic relations matters of a specific jurisdiction, the book is classed as the law of the jurisdiction, rather than as "religious law" (in what will soon be the "KB" schedules). A book on how to write an Islamic will that is enforceable under American law classes in KF under the number for wills, though a book limited to the Islamic requirements for writing wills classes in KB. Especially for books on civil courts being asked to require religious divorces, it has been necessary to create new numbers in several jurisdictions.
The Afro-Asian schedules (KL-KWX) are more sensitive to the existence of religious law as the "real" law affecting persons; however, the rule of classification by jurisdiction and then by subject remains in almost all cases. Thus books on divorces for Hindus and Muslims in India are classed in the same number, though they are substantially different under Indian law. Since the "religious divorce" is the only divorce, no special number would be created for the interaction of civil and religious divorces.
In the foreseeable future, a schedule for "theocratic" legal systems will exist (KB), but that will provide a place only for theoretical books, and perhaps books not tied to a single country. A book on Islamic-based criminal laws implemented in Pakistan classes in KPL since that is the actual law in force in Pakistan, whereas a theoretical work on Islamic criminal law will class in KB. In many cases a cataloger will have to look for signs that the book is aimed at a specific country in order to decide if the book is KB or law of a jurisdiction. For example, if a book on Jewish marriage law also discusses how to get the marriage registered with the Israeli government, it is probably Israeli law rather than Jewish law. Hindu law is less complicated since in most cases Hindu law is treated as the customary law of India and classed in KNS (though a book on the legal status of Hindus outside of India would class with the country where they live). The system benefits a researcher looking for the law of a country, but works to the detriment of someone wanting all Islamic related law in one place (i.e., the person studying Pakistani law wins, the person studying Islamic law loses).
Subject headings fill the gap. Due to LC's policy of requiring the first subject heading to match the class number, combined with the strong jurisdictional bias in LC's law cataloging, the first subject heading will reflect the "secular topic" and subsequent subject headings can bring out the ethnic or religious aspects. Users interested in how religious or ethnic law is applied across the jurisdictional or subject lines that determine classification, can search under the "religious" heading. For example (using RLIN commands), "Find sw Islamic law" will find everything on Islamic law regardless of country, and "Find sw Islamic law India" will find anything on Islamic law being applied in India (though an added search will be needed to pick up books on non-Islamic laws being applied especially to Muslims, as discussed below).
If the book discusses the theocratic background of a secular law, a religious law heading is appropriate as a "not first" subject heading. Thus a book on the implementation of Islamic criminal law in Pakistan will get a first heading for "Criminal law--Pakistan" and a second heading for "Criminal law (Islamic law)." In some cases the second subject heading will reflect the ethnic or religious group to whom the laws apply, with a heading for the "[Name of group]--Legal status, laws, etc.-- [Jurisdiction]."
One needs to avoid confusing laws applicable to a group with the customary laws of the group. For example, the Indian divorce laws applicable to Hindus are based on Anglo-American law rather than traditional Hindu law, and are considered quite objectionable by many Hindus. All books on the law of divorce in India, regardless of which group it is applicable to, get a first heading for the "secular" subject ("Divorce--Law and legislation- -India". If a book on laws is applicable to a single group, then a second heading will be used for the group, e.g., "Hindus--Legal status, laws, etc.--India." Only if the classical premodern law is discussed will there be a religious heading, e.g., "Divorce (Hindu law)".
The treatment of religious customary law is evolving, and many questions will have to be answered as the KB schedules evolve. Does one distinguish between customary legal systems based on religions that are worldwide in scope (Jewish and Islamic law), and customary religious systems limited to one group that may reflect quasi-religious beliefs of members of the group (customary law of countless tribes and ethnic groups of the third world)?
At what point does religious customary law become so assimilated into the law of the country that no "religious" law is necessary? If Pakistan declares that Islamic law is the law of the land and all other laws are repealed, would all Pakistani law be considered Islamic law? Would there be a need for subject headings to reflect Islamic law at all? In the case of the United States, the domestic relations law is for all purposes the canon law of the Church of England, but it has been modified so extensively since its reception 200 years ago that only a legal historian would notice the connection, and it would be absurd to routinely include a "canon law" heading for works on American marriage law. In many third world countries, pieces of customary law (religious or otherwise) are evolving into the law of general application. At what point does customary law become law of general application whose origins lie in customary or religious law?
Should all groups be treated the same? Should books on a Roman Catholic annulment class as canon law, while books on Orthodox Jews using civil courts to coerce the issuance of a traditional Jewish divorce class as law of the place? We have, or can establish, numbers and subject headings for religious courts functioning as part of the nation's legal system, but where do we put a book on a religious court operating as a de facto arbitration tribunal in a country where such courts have no legal recognition? What if a religious group starts to develop its own judicial tradition for the first time (suggested in a recent book from an American fundamentalist perspective)? Current cataloging practices treat books on church governance as law of the country in countries where churches are regulated closely or established, as canon law for the Roman Catholic and similar churches, and as religion in class "B" for most others; should we try to treat books on, for example, assignment of clergy the same whether they are on the Church of England (KD), Roman Catholics (the future KB), or Baptists (B)?
Perhaps American law librarians once comfortably thought they lived in a world of well established exclusively secular law. Today we are in a world with much greater diversity, where in many countries "reception" is a problem for politicians rather than historians. Many ethnic and religious group, including some in Western countries are using religious jurisprudence as a vehicle for asserting ethnic autonomy. Users of law cataloging tools (catalogers and reference librarians) need to be sensitive to these developments to utilize the inherent flexibility of our cataloging tools to maintain access to the fluid world of religious law.
[This is a private statement and not an official statement of the Library of Congress.]
BACK to the Contents page.
FORWARD to the next article: What's
New on INT-LAW.