Has ‘The Law Found on the Street’ Reached the Inter-American Court of Human Rights? A Socio-Legal Analysis of the Communal Property Right Recognition

In this paper we first discuss the content of the ‘O Direito Achado na Rua’, its precursors and assumptions, questioning why this theory has not yet been recognised properly as an important alternate dialectical perspective of Law. Secondly, we verify the ‘encounter’ between this framework and the ‘International Law from below’ theory, pointing to its similarities, particularly with regard to the importance of marginalised social movements for the (re)construction of Law, and for battling against colonial and imperial remnants. Then, after highlighting property as a human right of liberal tradition prescribed for in the American Convention of Human Rights, we analyse four Inter-American Court of Human Rights cases on indigenous communities aiming at verifying if this Court applies ‘O Direito Achado na Rua’. At last, we conclude that by comprehending indigenous land as communal property, as advanced by the communities themselves before the Inter-American System, that is, desde abajo, the Court may indeed bring those forgotten by the Law to the centre of its construction.