사회를 계약할 수 있는가: 홉스의 계약법론

In his opus magnum Leviathan, Hobbes classifies the transfer of natural rights into gift and contract, the criterion of distinction being ‘synallagma’ or mutuality. Thus he defines contract as “mutual transferring of rights.” On the legal validity of gift, he said gift promises of future tense, probably meaning formless promises, cannot be valid in the law of nature; on the legal validity of contract, he said the same voidness of pure executory contracts. Generally speaking, Hobbes seemed to have followed the tradition of contract theories of Continental Civil Law jurists based on ancient Roman Law rather than English Common Law tradition. Social contract for the institution of Commonwealth consists not of gift promises but of covenants, which constitute a pure executory contract. Legal validity of the contract therefore must be founded not on the law of nature but on the coercive power of sovereign in the Commonwealth, which is the very purpose and result of the contract. Certainly this is a circular reasoning. Hobbes however seemed to have intended to find characteristics of social contract for acquisition, much more realistic event in human history, upon the theoretical basis of social contract for institution. For instance, we would reach to a corollary that social contract would become to lose its legal force as soon as people in the Commonwealth do not perform their duty of social contract.