Women's Land Tenure Framework for Analysis: Land Rights
I. How to Use This Framework
Who is This Framework Designed to Help?
This framework 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.
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 issue: Women’s rights to property. 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 an asterisk (*), so you will know that you should look at this question in relation to more than one issue.
The framework is intended to help you think through both formal legal and customary rights to property and to help you identify the gaps between law and practice. For analysis it is helpful to think about formal law and customary law separately but it should be noted that they often overlap, particularly when the formal law codifies or otherwise recognizes customary rights.
This framework should be used as a checklist. The order in which you answer these questions is not important. One law may answer a multitude of questions scattered throughout this document. The purpose is to alert you to the issues that may be important in a particular setting, and this will vary in different jurisdictions.
The framework was not created with any one particular legal system in mind. Users are assumed to have a basic understanding of the hierarchy of laws for the jurisdiction in question and should note that answers to the questions in this framework may come from more than one law. For example, in some countries all laws relevant for women’s land rights are national level laws and apply throughout the country, in other countries, the land law may be a national law but family law is a state-level law with local variances.
Users should identify whether the terms in the glossary and used in the framework have a different meaning or different use in the jurisdiction in question. The user should be able to analyze laws governing women’s land rights, and apply the framework to any legal system, using any legal terminology, but different legal systems can use different terms.
Understanding the text of specific laws that govern property rights is important because the law is an expression of the will of the state, even if the law is not broadly known or followed. There are many reasons why a law may not be put into practice: it may not be known; the law may not be followed because it makes no sense in a specific situation; or perhaps the majority of people disagree with the law. Good laws can be used to help bring about change and policy recommendations cannot be made without understanding the legal framework first.
This framework also includes a section to help analyze customary law for women’s land rights. This is because customs and practices can have a significant bearing on the effectiveness of a given law or policy. In addition to understand what customary laws are, to assist with advocacy on improving land rights for women, it is also helpful to know which customs are firmly entrenched, and which customs may be waning or changing. It can also be helpful to know if there is an underlying logic to the custom, a premise based on fairness, or maintaining peace for example. This type of analysis helps identify what kinds of adaptation may be feasible and possible and is an important first step in legal and policy reforms.
A guide on conducting legal and non-legal research is available here.
Examples of How This Framework Can Be Used
Example 1: I work at a large international aid agency, and I have designed an agricultural extension program. No women attend the training sessions on crop management, although it is clear to me that women provide much of the agricultural labor. I want to know why women do not attend the sessions and how to get some women involved.
You will want to use this framework to consider what role women play in agricultural production: how they see their role and how their husband sees their role. You will want to review both the legal and customary sections to understand whether women have legal or social rights to the land they farm and whether they are able to makes decisions or have control over decisions on crop management or spending resources if they are married or if they are head of their household. You will want to know who “owns” the land and how secure that right is.
Example 2: I am an academic in China and I am asked to help write regulations for land registration. I want to know how to make sure women’s names are documented.
You will want to review this framework and pay special attention to the legal section on individual and household rights to land. You may also want to look at the research guide to see whether there are readily available resources for you to find other countries’ regulations.