Guest Author: Aaron W. Kuperman
Library of Congress,
Regional and Cooperative Cataloging Division
akup@loc.gov
(N.B. This is not an official communication from the Library of Congress)

Except for a handful of libraries with highly specialized collections, the pending KB schedules won’t have a great impact on the typical American law library. Most English-language books that discuss Jewish, Islamic or Canon law are at least as likely to class with the law of the country rather than in KB. Church and state classes by state, not by church. Thus, subject headings, rather than classification, are the critical element in communicating the mix of religion and law.

“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 can’t really be law. In most western jurisdictions religious courts are largely irrelevant, and it was unheard of for anyone to try to manipulate the civil legal system in support of 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 a few specialists and antiquarians rather than mainstream legal scholars. American law cataloging practices evolved reflecting these perspectives.

For starters, it is easiest to note when not to bring out “religion.” As an example, the historic common law definition of marriage as being between one man and one woman is not merely based on the Christian teachings but until relatively recently the only “marriage law” in England (and its American colonies) was the applicable canon law (Jews being excepted). Those canon law principles were adopted, with modifications, into the current “secular” domestic relations law applicable to all persons, though it is still very obviously based on the 18th century English canon law. We do not assign “religious” subject headings to works on this subject since they have lost their religious identity and are now general law. For example, we don’t use “Polygamy (Canon law, Anglican communion)” (which is not a valid LCSH heading) for a book on POLYGAMY—LAW AND LEGISLATION—UNITED STATES, even though the latter was derived from the former.

However that doesn’t mean that “religious” law has disappeared even in the United States. While the reception of English canon law created one law for all citizens, many religious minorities do not regard marriage as being solely an affair of state. For the most part, most non-Protestant Americans still regard questions about marriage to be governed only in part by the legislature and in many aspects they still follow their own religious law and use their own religious tribunals. In many Afro-Asian countries, each ethnic and religious group is expected to be governed by their own domestic relations law (i.e., the religious or ethnic or tribal law is the law of the country for any given individual).

English-language books on Canon law domestic relations usually class in KB since applicable cases (e.g., Catholic Church annulment proceedings) rarely involve state courts. However, many cases involving other religious groups often end up in a civil court when an aggrieved party in divorce proceedings tries to use a state court to force the other spouse to agree to a religious divorce. Once a state court is involved, the case is no longer one of “religious law” and classes in a number such as KE572, but with subject headings for the secular topic DIVORCE—LAW AND LEGISLATION—[jurisdiction] and a second heading for the group in the form of JEWS [RELIGIOUS MINORITIES, MUSLIM WOMEN, etc.]—LEGAL STATUS, LAWS, ETC.—[jurisdiction]. If the book also discusses the internal “religious” law of the group, there might be an additional heading for that.

Cases of “religious law” ending up in “state” courts are not limited to domestic relations. There is a number at KF760.R44 for books on writing a probatable will according to religious tenets. Again, the first heading is secular: WILLS—UNITED STATES, the second heading is ethnic/religious for the group, e.g. MUSLIMS—LEGAL STATUS, LAWS, ETC.—UNITED STATES and if the book also gets into the details of religious law pertaining to wills a third heading may be needed, e.g. WILLS (ISLAMIC LAW).

Whether to include a heading for the “religious” law requires some thought. For example, a Pakistani law of Islamic marriage (applicable to Muslims only, non-Muslims are governed by different laws) would get a first heading for MARRIAGE LAW—PAKISTAN and probably a second heading for MARRIAGE (ISLAMIC LAW). A heading for “Muslims—Legal status, laws, etc.” is probably redundant in an overwhelmingly Muslim country.

In the above example, whether to include a geographic, as in MARRIAGE (ISLAMIC LAW)—PAKISTAN, should depend on whether the discussion of the religious law is country specific. If the “Islamic” component of the book is obviously Pakistani a geographic subdivision is needed and the book should class with law of the country (if for example, an Egyptian or an Indonesian saw the book, they would say “this is Pakistani and not relevant to my studies of Islamic law except as an example of Pakistani practice”). Of course if the whole book lacks a geographic orientation, it would class in KB with the “religious” heading as a first heading. In what is an illogical inconsistency, Jewish and Canon law headings generally do NOT accept geographic qualifiers, while Islamic headings do.

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. A book on laws applicable only to Hindus then gets a second heading HINDUS—LEGAL STATUS, LAWS, ETC.—INDIA. Since the statute in question is not based on classical or traditional law, there is no need for an additional heading for DIVORCE (HINDU LAW). Such a heading would be misleading since the book is on secular (basically English) law being applied to Hindus in contrast to their own customary religious law.

While domestic relations is the most common and “sexiest” area to find discussions of religious minorities having their own law, it exists elsewhere. To the extent allowed (and in the U.S., the constitutional right to make contracts means it is allowed), individuals can stipulate that their private contracts are governed by their own religious law, and that disputes will be litigated in religious tribunals (which is usually considered a form of arbitration). This results in a broad range of private and commercial matters ending up being litigated based on religious law. If one encounters a book on the subject, the “secular” heading (supporting the class number) comes first, and the religious headings come later, e.g., ARBITRATION AND AWARD—NEW YORK (STATE) followed by COURTS, JEWISH, but with no geographic because Jewish law headings don’t take geographic subdivision, unlike Islamic law headings.

The subject heading CHURCH AND STATE (which becomes RELIGION [JUDAISM, ISLAM, etc.] AND STATE in non-Christian countries) is still a hot topic. Less controversial is the area of ECCLESIASTICAL LAW (which becomes RELIGIOUS LAW AND LEGISLATION in non-Christian countries) and its many narrower terms that deal with issues arising when a religion is established, so that, for example, TITHES and CHURCH ATTENDANCE—LAW AND LEGISLATION are governed by acts of the legislature. The American states disestablished their state churches 200 years ago, so for the most part these headings will be only of historical interest to a library that collects only American law. Some aspects of this area of law still lives on, however, such as SUNDAY LEGISLATION and ASYLUM, RIGHT OF which have taken on meanings transcending their origins as aspects of the state church’s legal status. For times and places where these are “legal” issues referring to laws governing the established religion, they should be treated like any other law subject heading (if not, they probably should class in B, not K). Many of these headings’ reference structures need revision (hint: SACO project needed?).