The Legal Origins of Thomas Hobbes's Doctrine of Contract

Abstract

THOMAS HOBBES IS A SOCIAL CONTRACT THEORIST. Like all contract theorists he has difficulty explaining why a promise to perform in the future creates a contract that always obliges the promiser. Trying to answer this problem forces him to deal with the question of promises that later turn out to be against the best interest of the promisor. How this problem is stated and how it is r e so lved i f it is r eso lvedi s the crux of any social contract doctrine of obligation. In Hobbes ' s social contract theory, the problem is stated in seventeenth-century legal terminology: consideration, vow, oath, and so on, This dependence by Hobbes on legal concepts limits the ways in which he can resolve the problem of contractual obligation. In this essay I intend to show that Hobbes had considerable knowledge of the law, that he derived his concept of contract very strictly from an English legal source of the previous century, probably Christopher St. German ' s D o c t o r a n d S tuden t , ~ and that his debt to this legal source influenced his justification of political obligation. If Hobbes was so indebted to legal thought, why has this debt gone unnoticed? There are three reasons for this, one of which lies with Hobbes himself. In his autobiography of 1681 he concentrated on his contacts with the continental rationalists and with the exponents of Gal i leo ' s New Science. ''2 At that t ime Hobbes obviously wanted to be remembered as a leading member of this new thinking, as indeed he was. Furthermore, twentieth-century philosophy has been much more interested in philosophy of science than in philosophy of law. This contemporary interest has made the materialist, determinist, and nominalist aspects of Hobbes ' s thought appear to be the most significant