Social contract theory has severed its links to basic principles of contract law over the past three centuries. When Thomas Hobbes published Leviathan in 1651, he included a chapter about contract law and built his theory of origins of the state on contract law principles. However, present-day readers have difficulty with the notion of a legally-binding contract of everyone with everyone, of which there is no historical record to which no living person has consented.
I begin with an overview of the ideology of contract law before and during the 17th century and examine the writings of Hobbes and John Locke against this backdrop, focusing on their ideas about what makes a contract binding. I argue that we have difficulty with their theories because of changes in contract law principles. In seventeenth century England, contracts were often seen as assents to relationships having standardized terms set by law and custom, so that an agreement whose terms were set by reason and not negotiated by the parties was a paradigmatic form of contract. Present-day theorists have forgotten the roots of social contract theory even as they revise the theory in order to make sense of it in the new legal context that surrounds them.
Suggested Citation: Suggested Citation
Kary, Joseph, Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory of Hobbes and Locke (1999). Ottawa Law Review, Vol. 31, No. 1, 1999, Available at SSRN: https://ssrn.com/abstract=2711536
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