TRACING THE ORIGIN OF THE SOCIAL CONTRACT ALONG THE ROUTE OF CONTRACT LAW

Abstract

Almost everyone takes it for granted that the social contract is a philosophical and political justification for the legitimacy of State and the bindingness of criminal law. Hardly has anyone inquired into the origin or formation of the social contract to ascertain whether it satisfies the requirement of contract law. This paper traces the origin or formation of the social contract to ascertain its congruence with contract law. The paper finds that the offer, acceptance and consideration of the social contract are incongruent with relevant principles of contract law. There is little or no evidence of intention to create legal relations and certain special groups of persons lack the requisite capacity for the social contract. It submits that the social contract, for being incapable of satisfying the requirements of contract law, fails to justify the legitimacy of State and the bindingness of criminal law.