II. Legal Research

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:

Introduction

To conduct a legal review, you will need to begin with some legal research to search for primary sources, which are also referred to as legal materials in this guide. This section provides suggestions for finding legal materials online. Of course, many legal materials are not available for free online. While, this guide will also identify sources and methods for obtaining legal materials in print or through subscription databases, a thorough discussion of locating materials through these other methods is beyond the scope of this guide. Please check back or sign up for email alerts to be notified when new LandWise resources are available.

Legal pluralism exists in countries where a number of different legal systems are recognized. These may include formal lawinformal lawcustomary practices, or religious laws.  In countries with a plurality of legal systems, land tenure and laws surrounding land (including marriage and succession laws) may be constructed or recognized differently within each system, and a number of individuals may be able to hold different tenure claims and rights to the same land.

Because rights may conflict under different legal systems, tenure security is lessened when individuals are less sure of which legal system applies, or when individuals are able to “forum shop,” or choose between legal systems based on their preferences. The greater the confusion around which law applies or the more opportunity there is for forum shopping, the less secure any given individual will be about his or her right to land. 

Knowing what legal systems apply to your research problem is fundamental to identifying sources for legal research. In different jurisdictions one or more set of rules may impact women’s land rights: formal lawreligious lawcustomary practicesinformal law, and religious law

The website Juriglobe identifies some of the main legal systems that apply around the world; it also provides background information on several legal systems: civil law, common law, Muslim law, customary law, and mixed systems. 

Some jurisdictions have different rules that determine the hierarchy of laws, while others do not have a specific hierarchy. When conducting a legal analysis, it is important to do some basic research on the structure of the government and legal system so you know whether a hierarchy exists and, if so, what those hierarchies are.

What is Formal Law?

The remaining sections of this portion of the research guide will focus on researching formal law.

The terms “law” or “formal law” can mean many things. A law is a rule or a body of rules that govern behavior and is enforced by a governing body. Sometimes when people refer to a law, they are specifically referring to a legislative enactment, such as a statute or code.  However, for the purposes of LandWise the term “law” may refer to any one of the following materials:

  • Relevant international treaties (e.g. CEDAW and UDHR) –treaties may not always be a source of law, but being a signatory to certain treaties indicates political will vis-à-vis that topic;
  • The constitution;
  • Legislative enactments such as statues, codes, acts, or legislative decrees;
  • Issuances by the executive branch (including the head of state, ministries, administrative agencies, etc.); and/or
  • Court decisions (also known as judgments or judicial decisions).

The level of importance of each type of “law” or “formal law” depends on a number of factors, including the type of legal system you are evaluating. For example, in a common law jurisdiction court cases are considered binding legal authority (also referred to as “precedent”), whereas in civil law jurisdictions judicial decisions are typically only influential authority. For information on conducting background research on a country click here.

  • Authenticity – Are you looking at an official or unofficial version of the law?
  • Accuracy – This issue often arises with translations. If you are relying on translations, are they official translations or unofficial translations?
  • Updating – Are you using the most up-to-date version of the law? Has the law been amended or superseded by another law? Are there any pending bills that will change the law?
  • Legal Terminology – Legal terms can have very specific meanings, and a seemingly straightforward term may actually have a specific legal meaning. For example, in regular conversation, saying that a woman “has a title to land” may mean that she has ownership rights to the land. In a legal context, that same phrase could mean that a woman has a piece of paper issued by the government that is evidence of her ownership of a piece of land.
  • Context – When interpreting legal texts it is important to review them carefully and within the context of other laws. Under some circumstances two laws may conflict or one law may refer to another law for specific situations. When reviewing multiple laws it is important to keep in mind that the same word may have different meanings in different contexts. For example, in some contexts the word “marriage” only refers to registered civil marriages, not religious marriages or customary marriages.
  • Availability - Some laws, regulations, judicial decisions, etc. are simply not available online. For many of these items you may need to contact local legal practitioners, government bodies, or local organizations to locate print versions of relevant legal materials.

Below are suggestions for some key steps for conducting legal research. This legal research roadmap assumes that you have identified one or more countries or geographic areas to research. Two terms that are used repeatedly are primary authority and secondary sources. Primary authority refers to the law itself (e.g. cases, statutes, regulations, court decisions, etc.), whereas secondary sources are materials (e.g. articles, books, reports, etc.) that help researchers identify, analyze, or understand primary authority.

Every research project is different and the actual research process will vary depending on the specific research problem you seek to solve. Legal research is an iterative process, so you may need to repeat certain steps at different stages of your research. For example, in the below roadmap, there are several instances when you may need to locate and use secondary sources to generate search terms, analyze legal materials, etc.

We suggest tracking your research process so that you have a history of your research process and the terms and searches you conducted. The process of keeping a research journal will help you track your progress, provide a context for any problems you encounter while conducting research, and help you locate similar information in the future.

  • Analyze the problem:
  • What areas of law are you interested in?
  • What jurisdictions have authority or control over the issue you are researching? What are the levels of government that you are looking at? For example, are you looking for both national and local government laws? 
  • What types of legal authority do you need to find? Statutes, cases, regulations, etc.?
  • Conduct background research:
  • Get some general information (e.g. demographic, social, economic, political, environmental, etc.) about the country/area that you are researching. For more information on conducting background research click here.
  • Conduct a search of secondary sources to identify laws and legal materials that may be useful; get some idea of some major issues and trends; and identify search terms. For more information on locating secondary sources click here.
  • Create a research plan:
  • Formulate some initial search queries.
  • Click here for suggestions on how to generate more sophisticated search queries. Please note that every search engine is different and these suggestions may not apply to every search engine you encounter. 
  • Look for definitions of some main terms and generate synonyms (for additional search terms). For some commonly used search terms click here.
  • Identify some sources for the information you are looking for. Click here for some suggested starting points for legal materials.
  • Conduct research for legal materials (also referred to in this guide as primary authority)
  • Organize the materials you have located
  • Fill in any gaps with additional research for legal materials
  • Do not forget to consider researching other countries, states, or legal systems for a comparative perspective.

Suggested Laws and Topics

Women’s land rights are impacted by a variety of legal and non-legal factors. This portion of the guide suggests some of the topics and laws that are typically relevant to conducting a general legal review with respect to women’s land rights. This is not an exhaustive list and depending on your research project other topics and laws may be relevant.  Also, terminology can differ significantly from jurisdiction to jurisdiction.  For example, in some countries laws or regulations governing inheritance may be referred to as succession laws.

Again, for the purposes of LandWise the terms “law” or “formal law” may refer to any one of the following materials:

  • Relevant international treaties (e.g. CEDAW and UDHR);
  • The constitution;
  • Legislative enactments such as statues, codes, acts, or legislative decrees;
  • Issuances by the executive branch (including the head of state, ministries, administrative agencies, etc.); and/or
  • Court decisions (also known as judgments or judicial decisions).

Also, depending on the legal system, some issues are covered at the national level and others are delegated to the sub-national level (e.g. state, province, municipal, local, etc.).

Starting Point: Suggested Laws and Topics

1.       Constitution – A constitution is the basic law or laws of a nation or a state which contains the principles upon which the government is founded, sets out how a state is organized, and prescribes the nature, functions, and limitations of the government. A constitution can establish many different things, and a few issues to look out for are whether the constitution addresses:

  • Principles upon which all laws must be based;
  • International obligations (e.g. treaties);
  • Equal rights for women and men;
  • Principles of non-discrimination;
  • Property rights; and
  • Conflict of laws and/or anything about religious law or customary practice and its relation to formal law.

 2.       Land Laws – Countries may have a number of different laws, regulations, and court cases governing land acquisition, land management, land use, land conservation, etc.

 3.       Co-ownership Laws – Issues about types of co-ownership arrangements, requirements for co-ownership, and whether or not there is a presumption for co-tenure, can often be found in a variety of different laws, such as the civil code, a land law, or property ownership laws. (Note:  the term co-ownership is the most common term used, but can include rights that are not technically or legally ownership—for example customary rights to use land).

 4.       Marriage/Family/Personal Laws – These types of laws can be difficult to locate, but are critical to addressing some of the main issues that impact women’s land rights, such as:

  • Is there more than one marriage law, family law, or Personal Law regime?
  • What constitutes a legal marriage?
  • Is polygamy legal?
  • Is dowry or brideprice legal?
  • How is property divided when a divorce occurs?

Click here for a useful source for family law materials.

5.       Dowry Laws – Some countries (e.g. India) have laws specifically governing dowry.

6.       Inheritance/Succession Laws – These laws are important for determining the rights of women to inherit bequeathed property. Note that the rights of wives versus daughters can differ significantly. Click here for the Women's Land Tenure Framework for Analysis: Inheritance.

7.       Land Administration Laws – The specifics of land administration and land registration can have a large impact on women’s land rights. Often researchers will need to go to specific administrative or local rules and regulations to answer questions such as:

  • How are land rights recorded?  Communally, individually, by household, or jointly?
  • Are land rights registered?
  • Is the land administration system deed-based or title-based or a mix of the two?
  • What identity forms are required to register land?
  • Do the forms recording land rights allow for more than one name (i.e. the names of the husband and the wife)?

 8.       Dispute Resolution – The issue of dispute resolution can be very complicated and may be addressed in more than one law. Below is a non-exhaustive list of issues to consider. We will publish a full Women's Land Tenure Framework for Analysis on important dispute resolution issues in the future. 

  • Who can hear land disputes generally?
  • Who can hear land disputes between household members?
  • Do customary leaders/elders have any legal authority?

There are three main types of sources:

  • Free Online Databases/Resources
  • Law School and Non-Profit Websites
  • Research Guides & Information Portals - *start with these*
  • GlobaLex - These GlobaLex country research guides are a great starting point and provide background information and links to online resources for legal materials.
  • Harvard Law School - This website provides links to legal information on a country-by-country basis.
  • Yale Country Research Guide - This website provides links to legal research guides and legal materials on a country-by-country basis.
  • UNHCR Refworld - This website has searchable databases of laws, case law, and country information.
  • Cornell LII - This website provides links to online resources organized by country.
  • FAO Gender and Land Rights Database - This website provides legal summaries and information about customary practices. This is a useful starting point to identify laws and materials. Users will often need to locate the full-text laws elsewhere and check to see if there have been any updates/amendments to the laws references on this site.

  • Legal Databases
  • Legal Search Engines and Directories
  • Subscription Databases - There are many subscription databases available. Below are a list of a few databases that contain some information about foreign laws. At this time we are unable to offer access to third party databases through LandWise. Depending on where you live, access to these databases (and others) may be available through universities, government entities, public libraries, bar associations, etc. Often organizations that provide access to these databases will require some institutional affiliation because of high subscription costs.
  • Print Materials (e.g. books, gazettes, print articles, serials, etc.) -- Sources for locating print materials include universities, law schools, libraries, law firms, bar associations, government agencies (e.g. legislative bodies, agencies, courts, etc.), legal aid centers, non-governmental organizations, women’s groups, and women’s legal organizations.