How do our Anglo-American common law principles inform social contract theory? Would any of the three fictional social contracts of Hobbes, Locke, or Rousseau, for example, be enforceable from a purely legal perspective? Recall from my previous post the four common law elements of legally-enforceable agreement: A. offer and acceptance (mutual assent), B. consideration, C. capacity, and D. lawful purpose. With this legal background in mind, below are my tentative thoughts:

A. Regarding the first element, can there really be mutual assent in the state of nature? Alas, all social contract theorists just assume the existence of voluntary mutual assent. But in truth, we really don’t know if either the offer of the social contract or its acceptance was, in fact, voluntary or, what is more likely, if they (offer/acceptance) were made under duress. After all, when you stop to think about, how can our dire situation in the state of nature — a state of war, according Hobbes and even Locke — not be a state of duress? Also, since the social contract is a pre-political instrument — it was supposedly negotiated in the state of nature — then who exactly is the “offeror”? In other words, even if there was mutual assent, the social contract looks more like a non-enforceable oath than a “contract”!

B. Next, regarding the second element, consideration is a legal doctrine that helps us distinguish legally-binding and enforceable contracts from “mere promises” or gifts, which are not enforceable, and for this crucial element to be met, each party must give up something of legal value — like money, goods, or services — to the other. In addition, a promise to refrain from acting (forbearance) is deemed something of legal value under the doctrine of consideration. In the case of the social contract, we are supposed to be giving up our natural liberty in exchange for protection from the state, but this observation begs the question, is our natural liberty in the state of nature really a God-given pre-political right (i.e. we have a moral right to enjoy our natural liberty) or is it just an empirical description of the state of nature (i.e. we can do whatever we want in the absence of a duly-established government to enforce its laws on us)? And either way, how much liberty did we really have in the state of nature?

C. Regarding the third element, capacity refers to a person’s ability to form a binding contract: they must be of sound mind amd of legal age; they must understand the terms and consequences of the agreement. But what about children and non-human animals? Does the social contract apply to them? As it happens, contract law allows minors to rescind their contracts when they reach the age of majority, but how does one opt out of a Hobbesian or Lockean or Rousseauian social contract once it comes into play? On the contrary, if there is one thing that social contract theorists of all stripes have in common it is this: they do not allow anyone the right to opt out of the social contract once it is formed!

D. Lastly, regarding the fourth element, an agreement is void and unenforceable if its purpose or subject matter is immoral, fraudulent, or against public policy, or if injures a third party. On this note, what if the so-called “social contract” were better seen, not as a legitimate deal among equals to keep the peace, but as just a glorified form of extortion: your liberty or your life!

Point of order: However the substance of the so-called “social contract” is described (i.e. as extortion or a legitimate deal), my tentative observations above are just a short sketch of a more formal paper that I am working on. In the meantime, I will conclude my series on “Social Contracts and the Law” with one last observation (for now): the term “social contract theory” is a misnomer to the extent it implies a master or single “social contract” that all social contract theorists agree on. In reality, however, it is better to use the term “social contracts” (plural), for there are as many strands of social contract theory as there are social contract theorists! As a result, instead of assuming we are dealing with one composite or master social contract, each of these proposed social contracts must be scrutinized on its own terms.