The Roman public trust doctrine

I've often expressed impatience with the throwaway references to Justinian (often misconstrued as an adjective!) that are so ubiquitous in discussions of the public trust doctrine. Now comes Bruce Frier's review of Domenico Dursi's Res Communes Omnium. Dalle necessità economiche alla disciplina giuridica (Jovene, 2017) to make some order for those of us for whom Roman law is something of an enigma. Frier writes, explaining his own view (I'm omitting most citations and footnotes):

By the Late [Roman] Republic, the general idea of res communes was already well known in Roman culture. Plautus’ comic play Rudens, thought to date from c.190 B.C., features a fisherman (his occupation is important!) proclaiming that “the sea is unquestionably common to all persons” (mare quidem commune certost omnibus) in a longer speech that emphasizes fish as belonging to their captor.... [T]he concept becomes much more familiar in Latin sources from the Late Republic and Early Empire. Forms of common property are most often the air and the sea, but Cicero adds in the seashore (litus) as well. Although the familiar idea of common property was further elaborated in Early Imperial poetic or Stoic theories on the origin and development of human culture, there is no sign that these theories had any pronounced influence on the law; certainly they lead to no demonstrable legal conclusions.

By the Late Republic, a second cultural element had emerged: a widespread and often expressed disquiet about the startling proliferation of villas along the coast of central Italy and the Bay of Naples.... The architects of these villas, capitalizing on recently-discovered hydraulic concrete, often put down substructures extending beyond the shore and out into the sea — a phenomenon quite commonly referred to in legal texts, and one of particular concern to poets such as Horace who perceived the structures as morally hubristic. More exciting, however, is the discovery that not a few of the maritime villas incorporate fishponds so large that they were plainly intended to produce fresh fish not just for the villa, but for local markets.... [T]hese fishponds may well have brought the villa-owners into direct confrontation with more humble local fishers. 

Digital library IV: Bartolus's Tractatus de fluminibus seu Tyberiadis

After beginning the digital library of historical environmental law with works from the last few hundred years, we go back in time this week to the fourteenth century and the Tractatus de fluminibus seu Tyberiadis (1355, 1576 edition (source of the images in this post) here) of the great medieval Italian jurist Bartolus of Saxoferrato.

As Bartolus explained at the beginning of the work, he was inspired to write the book while on vacation near Perugia, despite his attempts to enjoy his vacation and stay away from legal scholarship:

This river [Tiber]... circles that splendid mountain on which the city of Perugia is situated and while flowing a great distance through its district, the river itself is bordered by plains, hills and similar places. These places are also well inhabited, enhanced with many beautiful buildings and luscious orchards bearing lots of fruit. Thus, when I was resting from my lecturing and in order to relax, was travelling towards a certain villa situated near Perugia above the Tiber, I began to contemplate the bends of the Tiber, its alluvion, the islands arising in the river, the changes of the river-bed as well as a host of unanswered questions which I had come across in practice. There were also other matters, which came to mind from my own observance of the river. I began to consider in various ways what the legal position was, not believing that I would take it any further, lest not to spoil my vacation, the reason why I had come. And thus while I slept that night, I had a vision near dawn that a certain man, whose countenance I found gentle, came to me and he said the following: "Write down what you have begun to think about and since there is a need for illustration, provide mathematical diagrams: Look! I have brought you a reed pen to measure and draw circles as well as a ruler to draw lines and to construct diagrams". I told him to spare me from illustrating legal matters with geometrical diagrams, since were I to do that, there would be many more scoffers than supporters. Then, looking at me with a troubled countenance, he said: "Bartolus, I know that you have something (in you) of God, but are you indeed afraid to be ridiculed for your service? 

In Memoriam: Joseph Sax

Earlier this week the great environmental law scholar Joseph Sax passed away, at age 78. Read the appreciation by Holly Doremus at Legal Planet.

As noted by the New York Times, Professor Sax was perhaps best known for his advancing the concept of "public trust doctrine" as an organizing concept of environmental law. Before Sax "revived and re-invented" (as Carol Rose put it) this now-widespread idea in his seminal article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, few had heard of the doctrine. Since then, thousands of articles, briefs, and court decisions in the US and other countries have cited as a matter of course to Justinian and Matthew Hale and argued for the relevance of the doctrine to various environmental issues (Fred Shapiro counts 856 citing legal articles).

As Rose explained in her 1998 symposium article, Sax's 1970 article can be understood as his response to ascendant theories of agency capture of the regulatory process and then-new public choice theory, which provided an explanation of the ability of small but cohesive groups to dominate the policy-making process to the detriment of the wider public interest. The public trust doctrine as advanced by Sax was less about property (as was the original doctrine) than about administrative law: Sax wanted courts to be wary of the regulatory process that often sacrificed public good to private interest.

Sax's passing is an opportunity to reflect on the fact that even ubiquitous and seemingly timeless legal ideas have a history, and that history includes not just formal sources of law, but also scholars and others who mold it and change it to fit changing times. It is also an opportunity to be grateful for the deep and wide body of public-minded scholarship (see Doremus's post) left for us by this giant of the law.

The public trust doctrine and origin stories

Michael Blumm and Mary Wood have posted Chapter 1 of their forthcoming The Public Trust Doctrine in Environmental and Natural Resources Law (Carolina Academic Press, 2013) on SSRN. According to the abstract, this casebook has a strong historical component:

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right to challenge governments concerning their management of PTD resources.