Herald of Civil Procedure

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Doctor of Legal Sciences, Professor,
Department of Civil and Administrative Proceedings,
Russian State University of Justice

Montesquieu’s legacy has not lost its relevance, so it is important to understand the development
of his original ideas in contemporary conditions. Especially in terms of understanding
the natural origin of human rights, the priority of justice over the law, the need to find
a just solution in the stated conditions and circumstances. The present article highlights the
main problems connected with the opposition of positive understanding of law to its naturallegal
sense, the differences in the models of legal proceedings arising from this opposition. The
author does not exclude the coincidence of the sense of law and law, but it does not happen
very often. The reasons for the discrepancies stem from the fact that the legislator does not
keep pace with the development of social relations, cannot regulate all the relations that give
rise to judicial disputes, cannot anticipate within the walls of the legislature the palette of features
that may be claimed in a particular case. Absolutization of the role of the law, its deification
has no basis. The development of legislation in the direction of maximum filling the
existing gaps seems to be deliberately unpromising, since the attempt to apply general norms
containing prescriptions, to special social relations can lead to negative consequences. Therefore,
the development of law is seen on the way of its supremacy, free of positivism.

Keywords: law; legal thinking; positivism; justice; legislation; human rights; legal proceedings;
protection of law.


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Information about the author

D.A. Fursov (Moscow, Russia) – Doctor of Legal Sciences, Professor, Department of
Civil and Administrative Proceedings, Russian State University of Justice (69 Novocheremuskinskaia
St., Moscow, 117418, Russia; e-mail: [email protected]).

Recommended citation

Fursov D.A. Dialektika dukha zakonov ot Sharlia Lui Montesk’e do nastoiashchego
vremeni [Dialectic of the Spirit of Law from Charles Louis Montesquieu to the Present].
Vestnik grazhdanskogo protsessa – Herald of Civil Procedure, 2022, vol. 12, no. 1,
pp. 13–22. (In Russ.) https://doi.org/10.24031/2226-0781-2022-12-1-13-22