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ADMINISTRATIVE LAW AND SOCIAL CONTROL

A popular misconception about the law is that it consists almost entirely of criminal law, with its apparatus of crime, police, prosecutors, judges, juries, sentences, and prisons. Another misconception is that all law can be divided into criminal law and civil law. However, and as we have seen in earlier chapters, the resources of legal systems are far richer and more extensive than either of these views implies. This section discusses how distinctive legal ways can be used to control what Robert S. Summers and George G. Howard (1972:199) call “private primary activity.” They use this concept to describe various pursuits, such as production and marketing of electricity and natural gas; provision and operation of rail, air, and other transport facilities; food processing and distribution; construction of buildings, bridges, and other public facilities; and radio and television broadcasting. But these activities are not confined to large-scale affairs such as electrical production and provision of air transport. The list can also include such activities as the provision of medical services by physicians, ownership and operation of motor vehicles by ordinary citizens, construction of residences by local carpenters, and the sale and purchase of stocks and bonds by private individuals. Private primary activities not only are positively desirable in and of themselves, but also are essential for the functioning of modern societies. These activities generate legal needs that are met through administrative control mechanisms (Warren, 2010).

Today, all kinds of services are needed, such as those provided by physicians, transport facilities, and electric companies. But an incompetent physician might kill rather than cure a patient. An unqualified airline pilot might crash, killing everyone on board. A food processing company might poison half a community. In addition to incompetence or carelessness, deliberate abuses are also possible. An individual may lose her or his entire savings through fraudulent stock operations. A utility company might abuse its monopoly position and charge exorbitant rates. An owner of a nuclear waste disposal facility may want to cut corners, thus exposing the public to harmful radiation.

Private primary activities, Summers and Howard (1972) noted, can cause avoidable harm. At the same time, such activities normally have great potential for good. Airplanes can be made safe, and stock and consumer frauds by fly-by-night operators can be reduced. Legal control of these activities is then justified on two grounds—the prevention of harm and the promotion of good. For example, in the case of radio and television broadcasting, laws can be concerned with both the control of obscenity and the problem of balanced programming, such as covering public affairs in addition to entertainment and sports. Control is exerted on private primary activity through administrative laws, which take the form of licensing, inspection, and the threat of publicity.

 
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