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

摘要

This Article puts forward a new social–political theory of the public trustdoctrine by demonstrating that the doctrine is a legal tool that embodies bothrights-conferring and responsibilities-imposing functions. The new theory, as theArticle shows, is capable of yielding effective responses to the criticisms that havebeen leveled against the doctrine and the conventional theories upon which thedoctrine was founded.Based on the role of public space in human development, the Article firstdiscusses how and why the public trust doctrine has functioned to protect publicspaces by conferring upon citizens four categories of public rights. The Articlethen argues that we should regard the public trust doctrine as a legal tool toenforce the public trust principle as a fundamental constitutional principleaffording citizens fundamental rights over public space that is indispensable forhuman development. The protection of the public interest under this principleembodies the fundamental human value of protecting public space andunderscores the need for the legal system to be shaped in a manner that effectuatesthis human value.