Women's Land Tenure Framework for Analysis: Inheritance

Renee Giovarelli and Elisa Scalise · Sep 22, 2016

II. How to Use This Framework

Page Contents

This page will highlight a few areas for analysis.

To jump to one of the sections on this page use the below links:

Who Is This Framework for Analysis Designed to Help?

This frameworks is designed to assist anyone who is interested in understanding the complex issues associated with women’s land rights--officials, grassroots organizations, international technical advisers, policymakers, development practitioners, women’s rights advocates, land rights advocates, people who are developing programs to assist women farmers, people who are concerned with food security, etc.  

Examples of How This Framework for Analysis Can Be Used

Example 1: I am a paralegal in India, and I want to know how to argue for women’s rights to inherit land.

 

You will want to use this framework and answer the questions about the formal law and customary law. You will want to use the questions in this framework to think about the barriers to women inheriting land and what support there is for women to inherit land.

 

Example 2: I am working in Northern Uganda, and I am aware that widows are frequently chased from their land.  I want to know who they can go to for help.

 

You will want to review this framework and specifically focus on the questions related to enforcement of rights in both the legal and customary sections.  It will be especially beneficial to look at all the questions related to wives’ inheritance.

How to Use This Framework for Analysis

This framework is intended to help you assess the current situation for women’s land rights in a specific country, state, or community. This framework looks at a single question: Can women inherit land?

 

The framework is intended to help you think through both formal legal rights and customary rights to inherit and to help you identify what are the gaps between law and practice.  For your analysis it is important to think about law and custom separately, but it is also important to identify when law and custom may overlap. For example, there are times when the formal law codifies or otherwise recognizes customs or customary rights as legitimate.

 

This framework should be used as a checklist.  The order in which you answer these questions is not important. One law may answer many questions scattered throughout this framework for analysis.  The idea is to alert you to the issues that may be important in a particular setting. 

 

For example, the law may be the same in every community in a country, in which case only the national laws will matter. However, there are also situations where the land law may be national level law but family law is regulated at the state level. There are many different combinations for which law is controlling in a specific place. Which law controls is very important for women’s land rights, for example while a national law may call for equal property rights between men and women  in a broad sense, a local law or regulation may regulate specific behaviors that mean that in practice women and men do not have equal rights to land.

 

Practitioners often wonder whether it is important to know what the law says if you know that most people in a particular area do not know or follow the law. Knowing what the law says and knowing the intent of the law is an important starting place for women’s land rights. There are many reasons why a law may not be put into practice: perhaps the law is not followed because it is not known; maybe it is not followed because it makes no sense in a specific situation; maybe people disagree with the law.

 

Good laws can be used to help bring about change; policy recommendations cannot be made without first understanding the legal framework. And policy recommendations cannot be effective if they do not take into account customs – what people accept as legitimate or not.  When analyzing customs, it is important to know which ones are really entrenched, and which ones are waning or changing.  It can also be helpful to know if there is an underlying logic to the custom (e.g. a premise based on fairness or maintaining peace).  Understanding what is feasible and possible to adapt to improve women’s land tenure security is an important first step in legal and policy reforms.  This framework attempts to help you think through the complexity of that question.

 

Some of the questions in this document will overlap with questions in other single-issue frameworks posted on this site.  Duplicate questions are marked with a star (*), so you will know that you should look at this question in relation to more than one issue.

 

A guide on conducting legal and non-legal research is available here.

How to Use This Guide

This guide is intended to work alongside the subject-specific W&L Frameworks. Ideally, this guide will aid users in conducting desk research to gather legal and social science materials. Once users have located the relevant materials, the W&L Frameworks provide subject-specific guidance for analyzing and evaluating legal materials and secondary sources.

 

In some cases, users can locate many of the materials that are pertinent to their research in the LandWise Database. Currently, the LandWise Database is in its early stages and the contents only cover a few jurisdictions. Our ultimate goal is to have enough materials in the database so that users can come to LandWise for all of their women and land research needs. However, this field of study is constantly changing and to cover every country on earth is impossible at this time. In light of this reality, we hope that this guide will help researchers identify the most up-to-date and relevant materials for their particular jurisdiction.