Toward a new social-political theory of the public trust doctrine

Abstract

This Article puts forward a new social–political theory of the public trust doctrine by demonstrating that the doctrine is a legal tool that embodies both rights-conferring and responsibilities-imposing functions. The new theory, as the Article shows, is capable of yielding effective responses to the criticisms that have been leveled against the doctrine and the conventional theories upon which the doctrine was founded. Based on the role of public space in human development, the Article first discusses how and why the public trust doctrine has functioned to protect public spaces by conferring upon citizens four categories of public rights. The Article then argues that we should regard the public trust doctrine as a legal tool to enforce the public trust principle as a fundamental constitutional principle affording citizens fundamental rights over public space that is indispensable for human development. The protection of the public interest under this principle embodies the fundamental human value of protecting public space and underscores the need for the legal system to be shaped in a manner that effectuates this human value.