The Final Cause of Law Is the Welfare of Society
Chapter Six
Syllabus topic 1, "Nature of judicial process"
Pages 23 to 26 of 356
In one line
If you want to know why a judge chose one available answer rather than another, the answer is usually that he thought it better for the society the law serves; Cardozo said that this is not a lapse but the point.
In the wording a student can write in an exam: Cardozo's proposition that "the final cause of law is the welfare of society" states the end by reference to which the judicial process is to be conducted. A final cause, in the Aristotelian vocabulary Cardozo borrowed, is the purpose for the sake of which a thing exists, as distinct from its material, its form or its maker. Applied to law it means that rules are not ends in themselves; they exist to serve the welfare of the society that maintains them, and where a rule may honestly be read in more than one way, the reading that serves that welfare is to be preferred.
Unpacking the phrase
"Final cause." Aristotle distinguished four causes of anything. The material cause is what it is made of, the formal cause its shape or definition, the efficient cause what brought it about, the final cause the purpose it serves. A knife's efficient cause is the smith; its final cause is cutting. Cardozo is saying that the purpose of law, the thing for the sake of which it exists, is social welfare.
"Welfare of society." Deliberately broad. It covers security of person and property, the enforcement of reasonable expectations, the conditions of a decent life, and the moral standards a community holds. Cardozo did not define it precisely, and the vagueness is the standing objection to the whole approach.
What follows for the judge. Where two readings are open, choose the one that serves the end. Where a rule has become an obstacle to the end and can honestly be narrowed or distinguished, narrow it. Where the authorities are silent, let the end decide.
What does not follow. That a judge may disregard a clear rule because he dislikes its effects. Cardozo is describing the method of choosing among legally available options, not a licence to substitute a preference for the law.
Where it sits among the four methods
Cardozo ranked the method of sociology highest of the four, and this proposition is why. Philosophy, history and tradition are all backward-looking: they ask what follows from existing rules, where those rules came from, and what the community has done. Only the method of sociology asks what the result will do. Since the end of law is the welfare of society, the method that consults the end must prevail where the methods conflict. See [The Method of Sociology].
The Final Cause of Law Is the Welfare of Society
The Indian material
Indian constitutional adjudication is the best evidence in the world for this proposition, because the Supreme Court has repeatedly preferred the reading that serves social welfare and has said so.
M.C. Mehta v. Union of India, AIR 1987 SC 1086, is the plainest case.
Facts. Oleum gas escaped from a caustic chlorine plant of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi, shortly after the Bhopal disaster, causing death and injury. Proceedings begun as public interest litigation raised the standard of liability of an enterprise carrying on a hazardous activity.
Held. Law has to grow to satisfy the needs of a fast changing society and cannot afford to remain static, and Indian courts must build their own jurisprudence rather than be constricted by the law of England. An enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community and is absolutely liable to compensate those affected, without the exceptions that qualify strict liability, the measure of compensation being correlated to the magnitude and capacity of the enterprise.
Why it matters here. The Court gave its reason in the language of final cause. The English rule was available and would have produced a different result; it was rejected because it did not serve the welfare of an Indian society in which hazardous industry sits beside dense habitation.
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, shows the same reasoning setting a limit as well as creating a right.
Facts. Private unaided professional colleges challenged State legislation regulating capitation fees, and the Court reconsidered how far Mohini Jain v. State of Karnataka, AIR 1992 SC 1858, had gone in recognising a fundamental right to education.
Held. The right to education flows from the right to life under Article 21, but its content is to be determined in the light of the directive principles in Articles 41, 45 and 46. Every child therefore has a fundamental right to free education up to the age of fourteen years; beyond that age the right is subject to the limits of the State's economic capacity and development. A scheme regulating admissions and fees in private professional colleges was framed.
Why it matters here. Social welfare cuts both ways. It supported reading education into Article 21, and it supported confining the right at fourteen, because a right the State cannot deliver serves nobody. A student who cites the final cause only in support of expansion has understood half of it.
Criticism, which the examiner expects
It is indeterminate. Whose welfare? The welfare of the pavement dwellers in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, pointed one way; the welfare of the city's traffic and public health pointed another, and the Court had to choose. The formula does not say how.
The Final Cause of Law Is the Welfare of Society
It licenses the judge's own politics. If social welfare decides, and the judge decides what social welfare is, then the judge decides. This is the objection in [The Limits of Judicial Creativity], and it is why judicial restraint has defenders.
Courts are badly equipped to assess it. A legislature can commission studies, hear interests and count votes. A court hears two parties on a record neither designed for the purpose. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, the Court itself warned that judges must not try to run the government.
It threatens certainty. If a settled rule may yield to the welfare of society, a lawyer cannot advise with confidence, and the value that precedent exists to secure is weakened.
The join MU asks for
MU's January 2023 question puts this proposition and social ordering together, and the join is exact. [The Judicial Process as an Instrument of Social Ordering] says that adjudication arranges how a society lives. This chapter says by what standard the arranging is to be done. Without the first, the proposition is empty moralising; without the second, the ordering has no direction. A good answer to that question states the ordering function, then states the final cause as the criterion that guides it, then illustrates with a decision where the criterion visibly did the work.
A worked example
A municipal by-law prohibits hawking on footpaths. Hawkers challenge it as violating Article 19(1)(g).
By philosophy, the by-law is a straightforward regulation of trade and the analogy of other licensing rules supports it.
By history, footpath regulations grew out of nineteenth century sanitation law aimed at obstruction, which supports a narrow reading directed at genuine obstruction only.
By tradition, hawking on Indian footpaths is a settled practice of long standing, which cuts against a blanket ban.
By the final cause, the court asks what serves the welfare of this society: the pedestrian's use of the footpath, the hawker's livelihood, the consumer's convenience, the risk of extortion where the trade is illegal but tolerated.
The likely result is neither upholding the ban outright nor striking it down, but reading it as permitting regulation and requiring the designation of hawking zones. That result is not deducible from the by-law. It comes from the end.
What beginners get wrong
"It means the court decides what is good for society." It means the court prefers, among legally available readings, the one that serves social welfare. The qualification is the whole difference between adjudication and government.
The Final Cause of Law Is the Welfare of Society
"It is a modern or activist idea." It is Aristotelian in vocabulary and was orthodox in Roman law, which held the welfare of the people to be the highest law. Cardozo was restating an old idea, not inventing one.
"Social welfare always favours the weaker party." Olga Tellis and Unni Krishnan both show it operating to limit relief. It is a criterion, not a side.
Quick revision
- Final cause, in Aristotle, is the purpose for the sake of which a thing exists. Cardozo: the final cause of law is the welfare of society.
- It supplies the standard for choosing among legally available readings; it does not license disregard of a clear rule.
- It is why the method of sociology ranks highest of Cardozo's four.
- M.C. Mehta, AIR 1987 SC 1086: the English rule rejected because it did not serve Indian conditions.
- Unni Krishnan, AIR 1993 SC 2178: welfare both created the right to education and confined it at fourteen.
- Criticism: indeterminate, licenses the judge's politics, courts are ill equipped to assess welfare, and it costs certainty.
- MU joins this to social ordering: ordering is what the process does, the final cause is the standard by which it does it.
Test yourself
1. What is a final cause, and what does Cardozo claim is the final cause of law? In Aristotle's scheme, the purpose for the sake of which a thing exists, distinguished from its material, its form and its maker. Cardozo claims that the purpose for which law exists is the welfare of society, so that rules are means and not ends.
2. Does the proposition permit a judge to ignore a clear statutory rule he thinks harmful? Explain. No. It governs the choice among readings that are legally open. Where the words admit of only one meaning the judge applies it, and the remedy for a harmful rule is legislative. Treating the proposition as a licence to disregard clear law confuses adjudication with government.
3. Give an Indian case where social welfare produced a limit rather than an expansion. Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. Welfare supported reading education into Article 21, and equally supported confining the fundamental right to children up to fourteen years, the rest being subject to the State's economic capacity.
4. State the sharpest objection to the proposition and one institutional answer to it. That it is indeterminate and so licenses the judge's own political preference under the name of welfare. The institutional answers are that the choice must be exercised only among legally available options, that reasons must be published and are open to criticism and appeal, and that a bench rather than a single judge decides the questions where the criterion carries most weight.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.