Proposal: Court and Jurisdiction in RDA

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4 August 2014

Court and Jurisdiction in RDA

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11 Responses to Proposal: Court and Jurisdiction in RDA

  1. Robert Bratton says:

    From Aaron Kuperman, Senior Cataloger, Law Cataloging Section at LC:

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    While I don’t really disagree with proposal on “Courts and jurisdiction in RDA”, there are some aspects of the proposal that are problematic for American law catalogers. In searching for a problem in need of solution, the proposal might unintentionally complicate some aspects of cataloging beyond the issues they address. The concept of “jurisdiction” underlies all cataloging of legal materials, not just RDA. It is also the basis for subject cataloging (since subfield “z”, for law catalogers, reflects the “jurisdiction” more than a mere geographic area) and is the basis of classification under LCC (in which all legal literature is subarranged by jurisdiction).

    The de facto definition used by law catalogers is that a jurisdiction is a geographic area (place) with a legal system. In the MARC format, it is expressed as a 151 heading in the NAF, that also serves as the basis for a de facto (but virtual) 110, first indicator “1” descriptive heading. The 151 in the NAF can support not only a 651 heading of a $z subfield, but also 110/410/610/710/810 heading – even though there is no 110 in the actual NAF. A jurisdiction can be the author of a statute, constitution or treaty, expressed in the $t (or in a 240 in a bib record). These characteristics of the 151 in the NAF are unique and are quite different than a 151 in LCSH (a geographic place incapable of authorship) or any other 110s (which can’s serve as geographic headings or subdivisions). Note that a jurisdiction as expressed in a bib record (110 1-) can only author a law, treaty or constitution – for anything else, an agency which will be in subfield “b” is required.

    The proposal’s use of the phrase “political body” is misleading. The Democratic Party is a political body. Perhaps the American Legion is a political body. The Tea Party Patriots is a political body. They are all corporate bodies, defined in RDA as “An organization or group of persons and/or organizations that is identified by a particular name and that acts, or may act, as a unit”. They are not jurisdictions. They are corporate bodies, as conventionally assigned, that attempt to play a role in the political system. They are not jurisdictions.

    A jurisdiction is a “Polis (πόλις)” not political body. What makes a “jurisdiction” unique is that its existence is defined by a geographic area, and that it is recognized as the legitimate political authority, i.e. government, of that area. This is a somewhat metaphysical concept, and in practice a jurisdiction exists (and for our purposes, creates works in need of cataloging) through its government. A government is correctly defined in RDA, as “The totality of corporate bodies (executive, legislative, and judicial) exercising the powers of a jurisdiction.” Many Americans (and others) would suggest that the concept of government includes not just those three branches, but also “the people”, and this is what makes a jurisdiction something unique.

    A jurisdiction is a geographic area (that’s why they are 151 in the NAF) that has its own government. The government may be a pure democratic “town meeting”, or it may be a despot ruling in the name of the people and acting as the legislature, executive, and judiciary – but what defines a jurisdiction is the geographic area combined with a government. The government is uniquely capable of authoring laws, treaties and constitutions – and nothing else. The 110/610/710 headings consisting of the name of a jurisdiction, and absent a subordinate agency, author nothing other than laws, treaties and constitutions.

    If we did not have special treatments for jurisdictions in our cataloging standards, they would probably not even qualify as a corporate body. It isn’t really an organization or a group of persons (as opposed to “The people” except in a metaphysical sense). A jurisdiction is not a club or an association. Its uniqueness is why we have special rules for jurisdictions.

    Without the special rules, we would look at a statute and based on its text we would identify the creator based on the language of the work in hand, such as “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled” or “Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled”, and the first headings (in the 1xx field) for creators would be the Senate and the Queen, respectively. We want such documents to be entered under the “jurisdiction” (not those whose names are given in the document as being their creator). However since we have the concept of a jurisdiction, we can rationally enter these materials under the jurisdiction.

    To observe what happens without special treatment of jurisdictions, consider the situation for current EU legislation. LC for political reasons does not consider the EU to be a jurisdiction, and therefore its statutes are inconsistently entered under the first named legislative body in the initial statement of the enactment, or under title without a corporate body. It is a result most catalogers and users find annoying.

    “Religious jurisdictions” and “Ecclesiastical jurisdictions” are not jurisdictions in the legal sense. They are simply how private non-government bodies manage their own affairs. The use of the word “jurisdiction” is confusing. While many private bodies use the term (e.g. PSD has jurisdiction over revising LCSH and LCC, the Commissioner of Baseball has jurisdiction over team uniforms, the Baltimore Area Council of the Boy Scouts has jurisdiction over the troops in Baltimore), this is not jurisdiction in the way catalogers (and legal scholars) use the term. RDA should reserve the term “jurisdiction” for the legal (and law cataloging) understanding of the term.

    Religious bodies should be treated similar to all other corporate body – they are private groups of persons acting together. They should not be part of this discussion. It is anachronistic to have special rules for religious bodies since even in countries in which some churches are still government agencies, they don’t act or publish such like government agencies – and in most countries religious bodies are independent of the jurisdiction and the government. Indeed there is no reason why RDA needs any special provision for religious bodies since if they were subject to the same rules as all other non-governmental corporate bodies, the resulting would be the same as they are now. Legal jurisdictions need special rules since they aren’t conventional corporate bodies, and without such rules we would get absurd results (e.g. entering British statutes under the Queen).

    Courts are usually established by jurisdictions and our cataloging should show the sometimes complex relationships between courts (e.g. the Federal District Court for Maryland is part of the Fourth Circuit, which is supervised by the Supreme Court). However some courts are established by government agencies, which makes a profound difference under American law, and this needs to be indicated. Some tribunals are sponsored by private corporate bodies or exist independently (arbitration boards, international tribunals, courts set up by religious bodies such as Beitei Din and Shariah courts, etc.), and this should be addressed better. It should be noted that a court does not have legal authority over a jurisdiction, but rather adjudicates matter on behalf of the jurisdiction and in accordance with the jurisdiction’s rules (which might be statutory, or might be customary such as the Anglo-American common law).

    The proposal is basically harmless, though using the word “political body” for a “jurisdiction” would lead to great confusion since most Americans would consider any corporate body that dabbles in politics to be a “political body.” Also the concept of anything governed by a religious body is absurd to most Americans since in America, “religious” bodies are private corporate bodies acting in matters pertaining to religion.
    —-
    Jolande Goldberg, Senior Cataloging Policy Specialist for Law Classification, Policy & Standards at LC, responding to Aaron’s comments:

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    I agree with Aaron’s statement in principle. His initial discussion of the term “jurisdiction” is correct and thorough. However, his argument comes apart in the elaboration of “ecclesiastical jurisdictions” and needs a lot more work. Some of the observations could pass for many of the immense group of sects, but certainly NOT for the Catholic Church and Orthodox Church, or major Protestant churches, which have issued laws (codes) which are binding upon the members of the community in the provinces, dioceses, etc., and can be enforced. These pass the test for “jurisdiction” with all facets.
    —-

  2. Robert Bratton says:

    I’m formulating my response to this proposal, but I’m hoping to get some more input from AALL colleagues first.

  3. Kathy Glennan says:

    Under recommendation #1, I prefer the term “religious” over “ecclesiastical” for the reasons stated (the former is a broader term).

  4. Kathy Glennan says:

    Would “governing body” work better than “political body”? Are there other replacement wording suggestions?

  5. Kathy Glennan says:

    I’m having a hard time parsing the proposed definitions for “appellant” and “appellee”. Does anyone have alternative wording to suggest?

    • Kathy Glennan says:

      While we’re at it… can the Appellant/Appellee be a family?

      • Robert Rendall says:

        To participate in legal proceedings I think an Appellant/Appellee would have to be either a natural person or a juridical person i.e. an incorporated body of people. So not a family, unless you create the Glennan Family Association.

    • Robert Rendall says:

      Adding “recorded in a legal work of a higher court” is what makes the definition hard to read, but this proposal asserts that it’s important to do that. If so, maybe put it in the middle: A person or corporate body, recorded in a legal work of a higher court, who appeals the decision of a lower court.

  6. Robert Bratton says:

    As you might imagine there was a *great* deal of discussion among AALL colleagues about this proposal.

    We support adding definitions of “court” and “jurisdiction” to the RDA glossary. We disagree with the proposed definitions and suggest the following:

    Court: a corporate body that has legal authority to adjudicate disputes and administer justice

    Jurisdiction: a place under the authority of a government

    “Jurisdiction” is a troublesome word, because English speakers use it to mean slightly different things. It isn’t just a place. It isn’t just a governing entity. It is a unique combination of the two, which makes it difficult to explain in a succinct definition.

    Relationship designators:

    We do NOT support changing “enacting jurisdiction” to “enacting political body.” As Aaron pointed out “political body” is vague and misleading. “Enacting jurisdiction” is meaningful to law students and scholars, whereas “enacting political body” is not. We think the current definition for “Enacting jurisdiction” and “jurisdiction governed” should remain unchanged. AALL may explore proposing an RDA change proposal about these two relationship designators so that “jurisdiction governed” would be the default and “enacting jurisdiction” would be the exception (the reverse of current practice).

    Table 1:

    We support replacing “jurisdiction” with “place” in 2.7.2.3 – 6.5.1.1.

    We do not support replacing “jurisdiction” with “political body” in any of the proposed instructions. And we do not support changing it to “body” in 19.2.1.1.1.

    11.2.2.26.1 — I think it is inappropriate to add “ecclesiastical jurisdiction” here since “ecclesiastical” has Christian connotations and this instruction isn’t limited to the Christian Church. While it isn’t spelled out in this proposal, we would advocate for using “religious jurisdiction” instead of “ecclesiastical jurisdiction” unless an instruction is specifically about the Christian Church.

    We’re OK with the proposed changes from “jurisdiction” to “authority” and from “jurisdiction” to “territorial jurisdiction.”

    11.13.1.1 is repeated but with two different replace proposals.

  7. Robert Bratton says:

    I misspoke about one thing in my last response.

    There was a proposal to change the current definition of jurisdiction governed so that the two related RDs are defined as:

    enacting jurisdiction A jurisdiction enacting a law, regulation, constitution, court rule, etc.

    jurisdiction governed A jurisdiction governed by a law, regulation, etc.

    The fallout from this is that either a) 99% of the time when using one of these designators, you’re going to use both RDs in the same AAP, or b) the law cataloging community will develop a best practice to only use “jurisdiction governed” 99% of the time and “enacting jurisdiction” for the 1% exceptional cases.

    Example:

    Scenario A:

    110 1 United States, $e jurisdiction governed, $e enacting jurisdiction

    110 1 Suriname, $e jurisdiction governed
    240 10 Grondwet (1955). $l English
    245 10 Constitution of Suriname
    710 1 Netherlands, $e enacting jurisdiction

    Scenario B:

    110 1 United States, $e jurisdiction governed

    [The Suriname example would be the same in both scenarios.]

  8. Steve Kelley says:

    The AALL comments make a lot of sense to me. I would support their position.

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