This weeks addition to the digital library of historic environmental regulation is Joshua Toulmin Smith's The Legal guidelines of England Referring to Public Well being, revealed in London by S. Candy in 1848. The complete title continues: Together with an Epitome of the Legislation of Nuisances, Police, Highways, Waters, Water Programs, Coroners, Burial, &c. Relating Thereto; with an Historic Evaluate of the Legislation of Sewersl and an Examination of the Proposed Measure of Sanatory* Laws Now Earlier than Parliament. As you may inform from the title, "public well being" within the Victorian period included a lot of what we might at present label "environmental regulation".
You wouldn't understand it from the title, however Toulmin Smith was a serious critic of England's mid-nineteenth century public well being laws, as Noga Morag-Levine has defined. A kind of "free-market environmentalist" of his time, he argued that the brand new centralized, administrative regulatory mechanisms enacted beneath Edwin Chadwick's reformist program–what Toulmin Smith known as "empirical laws"–were inconsistent with the English structure, which (he argued) required regulation via the frequent regulation. (Examine Philip Hamburger's latest arguments on this vein.) So Toulmin Smith's work was extra of an assault on modern environmental and well being regulation than a treatise summarizing the regulation, as he defined in his Introduction:
The article of those pages could be very easy. It’s to point out that the care, by regulation, for the general public well being, and for eradicating causes injurious to public well being, is not any new factor : that the regulation of England has ever had a most cautious regard for all that considerations the general public well being: that the rules of the frequent regulation in reference to the matter are clear and decisive, and could also be taken as fashions of what regulation ought to really be in its regard for the welfare of the individuals. It’s, additional, to point out that although, as manners and customs change with passing time, the equipment for finishing up sure rules of regulation into follow could also be modified, these rules, based mostly as they at all times are on nationwide peculiarities, ought by no means to be uncared for for the sake of introducing novel or speculative doctrines. Thus, it being a precept of the frequent regulation that any noxious accumulation is a nuisance which must be abated, it could be of little significance whether or not it’s abated, in a single age, by the bailiff of the court docket leet, or, in one other, by the inspector of police; however it’s of very nice significance that new and theoretical treatments, interfering with quite a few non-public rights and sincere prejudices, shouldn’t be launched and made obligatory.
The Widespread Legislation of England has been, in all ages, the nice bulwark of the liberties of Englishmen. It’s simply in proportion because the rules of that frequent regulation have been uncared for or outmoded that these liberties have been endangered. And the persons are sure to take care that, within the nervousness for sanatory enchancment, no contemporary invasion of these liberties do happen. For this objective it’s obligatory that the rules of the frequent regulation be well-known to the individuals themselves ;—and it’s desired to be understood that these pages are addressed, for that objective, to the final reader ; and that it has, due to this fact, been endeavoured to divest them of technical remedy.
Plainly Toulmin Smith's anti-regulatory agenda additionally made him one thing of a cholera skeptic: