HARMONISING THE SOCIAL CONTRACT THEORY WITH CONTRACT LAW

Exponents of the social contract theory claim that the theory offers the philosophical and political platform for advancing the legitimacy of State and the bindingness of criminal law. Not much work has been done to ascertain the extent to which the social contract answers the description of a contract according to contract law. This paper concedes that the social contract can be distinguished from ordinary commercial contract. However, it contends that for the fact that it is called a contract of any sort whatever, the social contract should answer the description of a contract according to contract law. The paper analyses the social contract theory side‐by‐side relevant principles of contract law and finds that the social contract does not possess the characteristics of a contract; it does not have the essential elements of a contract; and it does not fit into the types of contract known to contract law. For failing to answer the legal descriptions of a contract, the term ‘social contract’ is a misnomer. This anomaly strangles the theory and robs it of capacity to justify the legitimacy of State and the bindingness of criminal law. The paper recommends that the history and tradition of the people of each State may be substituted for the social contract for advancing the legitimacy of State and the bindingness of criminal law.