Using an argument that goes back to the philosopher John Locke, many conservative and libertarian theorists claim that freedom (as in free market capitalism) and property rights have moral priority as inherent human rights (and there is a huge body of laws and legal precedents that support this claim), while the concept of the “common good” has no legal standing, or has a weaker claim. This argument is flatly wrong. In fact, the idea of a collective (societal) responsibility for the common good has a sturdy foundation in the ancient legal principle of the public trust.
The basic concept can be traced back to a category of Roman laws – Jus publicum, or public law – that, among other things, pertained to resources that were “by the law of nature” viewed as the common property of all humankind, including the air, water, the seas, and sea shores (according to the Institutes of Justinian). In the Medieval period, the idea of common ownership also came to be associated with such things as public thoroughfares and common pastures for grazing domestic animals. The principle that government has a responsibility and a role in protecting the commons is also embedded in English and American common law.
In modern times, the public trust doctrine has had many practical applications in various countries. In the U.S., the Federal government and number of states have used it to protect natural resources. The state of Washington, for instance, has mandated that all the fresh waters in the state are owned by the state as a common resource, and conditional “water rights” permits are required in order to use water for any large commercial purpose. There have also been many legislative applications of the public trust doctrine over the years. Important examples in the U.S. include the landmark National Environmental Policy Act (NEPA) in 1970, as well as the many federal laws over the years that have established some 59 national parks with more than 51 million acres.
The public trust doctrine is also being used these days as a legal tool for advancing the cause of fighting climate change and other environmental policy issues. For instance, in a bellwether case in 2013, the Pennsylvania Supreme Court found elements of that state’s hydraulic fracturing legislation to be unconstitutional as a violation of the public trust. Currently pending is a lawsuit filed on behalf of 21 children against the Federal government for violating their constitutional right to a healthy climate by supporting the production of fossil fuels and greenhouse gas emissions. Regardless of the outcome, it’s highly significant that a Federal court has recognized the legitimacy of this case.
Another important application of the concept can be found in the so-called sovereign wealth funds, with Norway’s large fund as a premier example. These publicly managed funds are authorized to hold and invest discretionary state revenues, such as royalties from the sale of crude oil, in ways that are intended to benefit the common good.
However, there is a deeper and broader interpretation of the public trust, championed by a number of legal scholars and some of our courts, which provides an opportunity for expanding its scope and application. The basic claim is that the public trust is a fundamental attribute of sovereignty in a democratic society – a “constitutive principle.” It involves an inherent power to serve the public interest, and it has supremacy over contrary laws or individual property rights. As the University of Oregon law professor and public trust specialist Mary Christina Wood observes in her 2014 book, Nature’s Trust, “characterizing the trust as an attribute of sovereignty bores down to legal bedrock.” In this interpretation, the public trust power and the ability to act in the public interest does not need to be backed by specific constitutional language or statutes. It no more needs to be spelled out than the police power, which is assumed to be a necessary element of sovereignty.
The concept of the common good is of similar character. It could be viewed as a basic responsibility of democratic governments. Professor Wood argues that, when government derives its power from the people, it necessarily imposes a fiduciary duty on the government to act as a trustee for the people. Australian justice Paul Finn refers to it as the “inexorable logic of popular sovereignty.” Even the patron saint of private property rights, John Locke, observed that the “Fundamental, Sacred, and unalterable Law of Self-Preservation” forms the very basis of society and creates a responsibility for government to protect this right.
A number of legal scholars contend that this obligation should not be limited to the current generation. In Professor Wood’s words: “The core purpose of the public trust lies in protecting the citizens’ unyielding interest in their own survival (and that of their children). Similarly, Peter Brown in Restoring the Public Trust, asserts that “the trustees’ fundamental duty is to preserve humanity.” And professor John Davidson points out that the core concern of America’s founding fathers was the welfare of “posterity.” Their intention when they wrote the Constitution was to create a social contract for the long term.
This argument is supported by an evolutionary/biological perspective on the nature and purpose of human societies, and the human condition. To a biologist, the basic, continuing, inescapable challenge for all living systems is survival and reproduction. Life is quintessentially a contingent “survival enterprise,” and every organized society, whether it be in leaf cutter ants or humankind, is at bottom a “collective survival enterprise.” Whatever may be our aspirations, the underlying purpose of a human society is to provide for the basic needs of its members, and of the society as a whole over time. Biological survival is a prerequisite for any other, more exalted objectives, and it defines the ultimate priorities for every society. Indeed, it is this biological purpose that lies at the core of the concept of the “common good,” or the “public interest.”
It is, therefore, both logical and appropriate to conclude that the public trust encompasses whatever is required to sustain and advance the collective survival enterprise. All governments have a fiduciary responsibility to undergird and support the “right to life” and its indispensable corollary, a “universal basic needs guarantee.” Equally important, governments must impose a restraining and guiding influence on the private sector for the common good, or public interest, including the interests of posterity. Another way of putting it is that the right to life takes priority over the right to freedom, or property rights.
To be sure, this is a hugely difficult task, amply confirmed by the disgraceful history of corrupt, captive, and self-serving governments over the past 10,000 years. But the bottom line is that the public trust trumps capitalist claims for economic “freedom” and the assertion of absolute property rights. These interests must be subordinated to the common good/public trust in any “legitimate” democratic society that is bound by the rule of law. Far from being merely a legalistic “fiction”, the public trust arises from our shared biological purpose. It can safely be predicted that the claims of property rights versus the public trust will become a major legal battleground in the years ahead as climate change becomes an increasingly urgent life-and-death matter for more and more of humankind.