The Legal Origins of Thomas Hobbes's Doctrine of Contract

The Legal Origins of Thomas Hobbes's Doctrine of Contract ROBINSON A. GROVER 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 resolved--if it is resolved--is 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 Doctor and Student, ~ 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 Galileo's "New Science. ''2 At that time 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 In preparing this essay, I have incurred a number of debts. One is to His Grace the Duke of Devonshire and the trustees of the Chatsworth Estate for their permission to use the library at Chatsworth and to quote from the unpublished Hobbes papers there. Another is to the librarians at Chatsworth, Mr. Thomas Wragge and Mr. John Day, for their thoughtful and imaginativehelp. Others are to Professor Charles Gray of Yale Law School, Professor Zbigniew Pilczenski of Pembroke College, and Professor John Barton of Merton College for their painstaking criticism of earlier drafts of this essay. Anyonewho has ever stepped off the beaten scholarly tracks knowsthat progress is nearly impossiblewithoutadvice from scholars in the field and without access to the necessary records. I have been given both in generous quantities, and I am deeply grateful. tA Dialogue in Englysshe betwyxt a Doctoure of Dyuynytie and a Student of the Lawes of England of the grounds of the sayd Lawes and of Conscyence, ed. T. F. T. Plucknett and John L. Barton as Doctor and Student (London: Selden Society, 1974). 2In The English Works of Thomas Hobbes, ed. Sir William Molesworlh, 11 vols. (London: John Bohn, 1839); hereafter cited as Works. [177] 178 HISTORY OF PHILOSOPHY part of his writings, to the neglect of the more traditional legal material. Finally, Hobbes's legal debt is to some rather obscure sixteenth-century writings that are difficult in their own right and are usually interpreted as a tract for the supremacy of the common law and of Parliament? The actual texts by St. German are more complex than this,4but their obscurity and apparent opposition to Hobbes's ideas have been enough to turn all inquiry toward other sources. I. How much law----civil or common~id Hobbes actually know? There is documentary evidence that, although he never studied law formally, Hobbes had by 1636 a good working knowledge of the common law, especially that of contracts,s Hobbes was at Magdalen Hall, Oxford, from January or February of 1602-3 until 1608. In February of 1608 Hobbes, then twenty years old, became tutor to William Cavendish, the son of the first Earl of Devonshire, who was also named William Cavendish . 6 Hobbes remained with his pupil, first as tutor and then as companion, secretary, and adviser, for twenty years; he left the family in 1628 only with the death...