ДИАЛЕКТИКА ДУХА ЗАКОНОВ ОТ ШАРЛЯ ЛУИ МОНТЕСКЬЁ ДО НАСТОЯЩЕГО ВРЕМЕНИ

Abstract

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.