About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

7 Cato J. 411 (1987-1988)
The Public Trust Doctrine

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most