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. Moreover, the Article contends that while it grants citizens fundamental rights over public spaces, the public trust principle underlying the public trust doctrine also impresses social responsibilities upon the stakeholders regarding the protection of public space. Through the enforcement of social responsibilities, the doctrine promotes a stewardship ethic of protecting the public spaces in society. In this respect, the Article alters the conventional trusteeship model under the public trust doctrine, which deems the government to be the sole trustee responsible for managing public resources. It demonstrates that the social responsibility model of stewardship requires not only the government but also the judiciary and individuals as members of the public to act as the stewards of public resources.