Magia, cultura y derecho

Abstract

In this paper the author warns of the problems involved in magical thinking, one that we tend to reject once we confront it with facts, but also one that, wrapped in aesthetic discourses, passes unnoticeably through our daily lives. This magical thinking permeates the law, and despite attempts made by some positivists (Kelsen, Hart, Ross) to eliminate it, returns today to service ideas like human rights and individual autonomy. The incorporation of evaluative statements (principles) in constitutional texts, declarations, etc., seems to lead to the correct solution of conflicts. But the Law thereby is deprived of its only merit, which consists in providing a minimum of normative certainty, and then we run in pursuit of Justice in the hope that judges will be politically correct and that our liberal and democratic convictions will have reached the end of history.