7 Cato J. 411 (1987-1988)
Public Trust Doctrine, The; Epstein, Richard A.

handle is hein.journals/catoj7 and id is 415 raw text is: THE PUBLIC TRUST DOCTRINE
Richard A. Epstein
Private and Public Property
From the outset political and legal theory have long been divided
on the question of whether various forms of natural resources are in
the original position held in common ownership or, alternatively, are
subject to private ownership by individual acts of appropriation.
Locke, for example, tries to work both sides of the street. He first
appeals to Biblical authority to demonstrate that God gave mankind
the earth to be held in common: God, as King David says, Psalm
cxv. 16, 'has given the earth to the children of men,' given it to man-
kind in common. (Locke 1690, ch. 5,  25). Thereafter he argues that
individuals fix their property in that portion of the common good
with which they mix their labor, even when they act without the
consent of others.
Locke's argument rested in part on a theistic foundation. Once that
is removed, however, accounting for property rights is far more dif-
ficult, for there is no obvious starting point for the analysis, as man-
kind in general cannot be regarded as joint donees who take by
transfer, rather than by acquisition. Locke's argument does not tell
us how to think about property when there are no rights, and no
grantor, in the state of nature. No longer is the inquiry, how does one
get private rights out of public ones, or indeed how to get public
rights out of private ones. No longer is there any necessary presump-
tion that all property rights should be either private or public. A mix
of rights, some public and some private, is surely conceivable, even
if their relative proportions are unclear. Historically, both the com-
mon law and Roman traditions were able to accommodate both forms
of property, with the navigable waters being perhaps the most nota-
Catojournal, Vol. 7, No. 2 (Fall 1987). Copyright @ Cato Institute. All rights reserved.
The author is James Parker Hall Professor of Law at the University of Chicago. He
wishes to thank Carol Rose for her extremely valuable comments on an earlier draft of
the paper.

411

Purchase Short-Term Access to HeinOnline

Prices starting as low as $29.95

Already a Subscriber?

What Is HeinOnline?

Learn More About the Law Journal Library (pdf)

We also offer annual subscriptions to universities, colleges, law firms, organizations, and other institutions. To request a quote please visit http://home.heinonline.org/subscriptions/request-a-quote/

Please note: the content in the Law Journal Library is constantly changing and some content has restrictions as required per the license. Therefore, please review the available content via the following link to ensure the material you wish to access is included in the database. For a complete list of content included in the Law Journal Library, please view http://www.heinonline.org/HOL/CSV.csv?index=journals&collection=journals