Direito em Movimento - Volume 16 - Número 2 - 2º semestre/2018

83 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS 5. LEADING CASE : THE NATURE OF INDIGENOUS PRO- PERTY RIGHTS Contemporary law rose hand in hand with the liberal regime, in truth as a legalist-bourgeois theory.The very concept of property – albeit old and tied up with Roman law – was developed along the ideas of liberalism, assu- ming an individual and formal character, at least in its original characteristics. Otherwise, property is linked to the emergence of the first human groups where assets belonged to the community in a homogenous way and there was no notion of individuality in one’s hold over things.That is to say that property, in its original concept, was communal 20 . However, in flow with the develo- pment of societies, property continues to assume increasingly individualized, sectorial and complex characteristics 21 (real estate, author’s rights and industrial property) until reaching limits in common interest and in social function.The concept of property, as can be seen, demands a more phenomenological, inter- disciplinary and not strictly juridical approach. As far as indigenous property is concerned, the title holder is not an individual but a group, a tribe or a people. The community’s link with the earth does not have economic characteristics, but is spiritual. A lot of the conflicts – involving juridical and material densification of indigenous land rights – flow from the difficulty of understanding this old form of commu- nal property and its interdisciplinary nature, in contrast to the modern characteristic of property rights: marked by being liberal, atomistic and a utilitarian-economic solution, where social destiny is confused with the productive capacity for the market. a national of any of the States Parties to a case submitted to the Court, he shall retain his right to hear that case. 2. If one of the judges called upon to hear a case is a national of one of the States Parties to the case, any other State Party to the case may appoint a person to serve on the Court as an ad hoc judge. 3. If among the judges called upon to hear a case, none is a national of the States Parties to the case, each of the latter may appoint an ad hoc judge. Should several States have the same interest in the case, they shall be regarded as a single party for purposes of the above provisions. In case of doubt, the Court shall decide. 20 COULANGES, Fustel de. A Cidade Antiga . Coimbra: Porto, 1987. 21 BERLE, Adolf A. A Propriedade Privada na Economia Moderna . Rio de Janeiro: Ipanema, 1957.