Invalidating Laws: Lessons from Suárez for Contemporary Jurisprudence

Abstract Perhaps surprisingly to the modern reader, Francisco Suárez characterized as “invalidating” or power-detracting laws the very same legal rules that H. L. A. Hart and much subsequent jurisprudence would later describe as “power-conferring.” This paper contrasts these two understandings of legal power. It shows that the currently prevailing understanding would benefit from a change in focus, in line with Suárez’s method and concerns. The crucial difference between the two understandings is that Suárez’s, unlike Hart’s, emphasizes the limits on legal power, and the moral reasons for allocating decision-making authority among different institutions and individuals. The paper concludes by drawing three lessons from Suárez’s approach and explaining how they bear on recent debates in both public and private law.