Download The People's Welfare: Law and Regulation in Nineteenth-Century America (Studies in Legal History)

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From Library Journal

Novak (history, Univ. of Chicago) has produced an extraordinarily important historical work on American government regulation in the 19th century. In contradiction to previous accounts of American legal history, Novak argues, America was not a laissez-faire, freemarket nation but rather a highly regulated state profoundly concerned with public welfare and market involvement. His carefully crafted analysis focuses specifically on the implementation of local laws covering such topics as public safety and health, public space and transportation, economy, and morality. He thereby demonstrates that America's ambivalence or antipathy toward regulation is a relatively recent phenomenon?an instructive point as politicians begin to deconstruct the welfare state. More leisurely readers may be put off by Novak's densely written introduction. Once readers complete the first chapter, however, they will find the rest of the book intensely interesting. This landmark treatise is recommended for all academic and larger public libraries.?Steven Anderson, Baltimore Cty. Circuit Court Law Lib., Towson, Md.Copyright 1996 Reed Business Information, Inc.

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Review

"[A]n ambitious research design, presented with admirable clarity and verve."Yale Law Journal"""[A] provocative, prodigiously researched, and beautifully written book."Reviews in American History"""Sophisticated and provocative, well-written, well-argued, and exhaustively researched."Law and Legal History"""This is a comprehensive and well documented book, showing the authorUs competence in a number of disciplines."Business History Review""ÝA¨n ambitious research design, presented with admirable clarity and verve."Yale Law Journal"ÝA¨ provocative, prodigiously researched, and beautifully written book."Reviews in American History"[A]n ambitious research design, presented with admirable clarity and verve."Yale Law Journal"[A] provocative, prodigiously researched, and beautifully written book."Reviews in American History"Sophisticated and provocative, well-written, well-argued, and exhaustively researched."Law and Legal History"Offers a vigorous and effective challenge to two related bodies of literature [on legal regulation]."American Historical Review"

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Product details

Series: Studies in Legal History

Paperback: 408 pages

Publisher: The University of North Carolina Press; 3rd edition (December 15, 1996)

Language: English

ISBN-10: 0807846112

ISBN-13: 978-0807846117

Product Dimensions:

6 x 1 x 9 inches

Shipping Weight: 1.3 pounds (View shipping rates and policies)

Average Customer Review:

4.3 out of 5 stars

5 customer reviews

Amazon Best Sellers Rank:

#940,273 in Books (See Top 100 in Books)

William J. Novak’s The People’s Welfare: Law and Regulation in Nineteenth Century America explores the role of law in the early republic and how it defined public spaces and personal liberty.Novak asks, “Why is this governmental regulatory practice so invisible in our traditional accounts of nineteenth-century American history? Why is it at all surprising to discover the pivotal role played by public law, regulation, order, discipline, and governance in early American society?” To answer it, Novak identifies several categories in which the law shaped nineteenth century Americans’ understanding of their world.In his introduction, Novak writes, “This book argues that the storied history of liberty in the United States, with its vaunted rhetoric of unprecedented rights of property, contract, mobility, privacy, and bodily integrity, was built directly upon a strong and consistent willingness to employ the full, coercive, and regulatory powers of law and government.” Novak argues against the idea of limited governmental intervention into people’s lives during the nineteenth century as well as against the liberal myth that nineteenth century laws served primarily to promote private rights and, through that promotion, to expand capitalism. To counter this, Novak demonstrates the role of laws in directing every facet of public life: safety, economy, public space, morality, and health. Novak first examines how nineteenth century individual rights were secondary to social obligations. He posits, “If man was a social being, and if all individual rights and liberties were relative to the rights of others and the good of the whole, then governance and law were not peripheral, yet alone antithetical, to man’s nature.” This, coupled with his analysis of morality policing, demonstrates a Foucauldian discourse of power relationships. Novak writes, “Given the expectations and status hierarchies of antebellum America, unattached, single women were even more susceptible to morals policing.” Novak’s conclusion, “Only in morals regulation were due process concerns this lax and local voices this determinative,” demonstrates how the law served to reinforce the concept of social obligations trumping individualism and how the individual testimony could overrule the normal evidentiary procedures in order to police behavior and punish deviance.Novak primarily argues against Louis Hartz’s 1955 book, The Liberal Tradition in America. Additionally, Novak argues against teleology, writing, “In place of the simple transition to liberal legalism, the well-regulated society intrudes as a wholly distinctive nineteenth-century legal-governmental regime that does not merely echo past nor anticipate future public practice.” He undermines his anti-teleological approach to a certain extent when he covers the shift away from the well-regulated society after the Civil War, what he calls “a belated casualty.” Even then, however, the effect is not immediate and fits into a larger pattern of change over time.Novak’s analysis relies on a close reading of both local and state statutes related and case law as the two worked in conjunction to create the functioning body of law that governed the well-regulated society. He counters those who only examine legal statutes as missing the crucial component of jurisprudence where judges interpreted the laws and created precedents with lasting effects.

Quite an interesting exploration of 19th century American society, implicating history, sociology, law, and philosophy. Novak's basic premise is that 19th century Americans did not conceive of the individual and his rights as inviolable, as our mythology currently has them do. The upshot of this is that government regulation of all aspects of life was enforced in all American communities, pursuant to 19th century America's actual philosophy of the "well-ordered society." This philosophy was premised on twin principles - "sic utero" (essentially do what you want without infringing on others) and "salus populi" (public welfare is supreme law). Thus, the communal good (community in the abstract, not the aggregate majority) dictated law, and rights were relative to it.The book is well researched and generally fascinating. I have two main complaints: (1) Novak, in my opinion, willfully ignores a federal/local distinction that would have been very important to the people he is talking about. The state's police power is well-established, but, in my opinion, he elides this with federal regulation to make modern political points; (2) something is missing from the narrative, although I'm not sure what it is. There is no question that Revolutionary philosophy was very Lockeian - individualistic and oriented towards absolute rights. How did this seamlessly segue into the communitarian ideals of the well-ordered society? Novak does not bother to tell us.

Great note book. Anyone interested in Government should have this in his/her collection. I recommend you read this note book

Novak takes a series of very subtle slights at the conservative/libertarian mantra that all rights are absolute, and that the Constitution has always engrossed every (individual) right since its inception.In The People's Welfare, Novak asserts the existence of two long standing principles of law and rights in American history. The first is "salus populi suprema lex est" ("the people's welfare is the supreme law" and "sic utere tuo ut alienum non laedes" ("use your own so as not to injure others"). He explicitly argues that the federal Constitution existed alongside of and recognizes the existence of these. This is not to dismiss or limit the Constitution, but to put it in the context of the times as preserving certain political rights and not of reaching to everyone's individual relationship to every level of government.Novak moves on from this to argue that prior to the Civil War era, rights and privileges were embedded in state statutes, common law, and community self regulation (i.e. the "police power"). This police power constituted a much more extensive--even intrusive--regulation of Americans' lives than would be tolerated under modern political theory and its regimen of absolute individual rights. Novak uses statutes and court records to show that "police power" was specifically understood to allow, even require, government intervention to maintain a "well regulated society" on local levels. Starting with fire and public safety issues, Novak then discusses markets, roads, morals and health.By highlighting the principles of "salus populi" and "sic utero tuo," Novak convincingly argues that the modern classic liberal definition of individual rights and inherent, absolute limits on governments is inapplicable to the pre-Civil War era (or slightly earlier). Novak is really attacking the modern politicians who would wield the Constitution as a club against any regulation or restriction as an attack on individual rights, or who would argue that individual rights are so clear as to be self-evident and inviolate. Libertarians and self-identified conservatives may be horrified at being identified as "liberal," but Novak is referring to the classical liberal, individual rights approach.At the end, Novak discusses the shift from the organic, "well regulated society" to the emergence of the modern Constitutional law, positivist state. He does not glorify the former, but points out the latter as a revolution in legal theory and politics.

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