„Czasopismo Prawnicze i Ekonomiczne”, 1921, No. 3–4, pp. 9–16
Lecture given at the Medical Society on 3 February 1921.
Russia now looks like a desert where hunger and plague are raging. Cities are in agony. Murder and slavery are rife. On the other hand, the same Russia, although defeated by us, now has beaten Kolchak, Denikin and Wrangel and has been able to persuade England to make treaties with her. Further, amongst these smouldering ruins a forceful flame is burning, which can be best seen when Europe is beginning to divide into two camps at socialist congresses, one of which subjects itself to Moscow’s command. There is some kind of a tormenting puzzle behind these bloody scenes. It appears as if the European states have solved this puzzle in the simplest way possible: if Russia is really in agony, it will take some time for a hundred million people to die; in the meantime, let us arrive at the best possible deals. Any warnings are muffled by the powers who emulate one another. As a result, we are living under a constant, exceptionally tiresome strain that is born of all mysteries.
There is only one remedy. To assess the nature of a historic movement, we must know as much of possible about its components. I propose that we follow this rule, and therefore I would like to present at least one, and perhaps not the least significant, aspect of the Bolsheviks’ activities, namely their legislation.
Learning about Bolshevik legislation is an important issue for us. After making peace, we will enter into various relationships with Soviet Russia, in which the knowledge of its legislation will prove indispensable. There is another reason, however. One American traveller said that the Bolshevik government is the most viable of all governments on earth. The Bolsheviks themselves may disappear, but the legal, economic and political ideas which they have shaped will remain. Already today, traces of these Bolshevik seeds can be found in legislations of all European states. The Germans have understood this. Two associations there are involved in collecting sources and publishing studies, and there is abundant literature agitating for and against as well as academic sources.
Our knowledge of Bolshevik legislation is very limited, however. Despite the fact that the Soviet Republic is our immediate neighbour, I have not found in Poland a collection of its laws. In general, moreover, the educated public’s knowledge of Bolshevism is limited. Almost no one knows that there, on the other side of the front, it is not just killing that is taking place – an original economic organisation is being erected with huge effort, and human life there is subject to new legal frameworks that are completely alien to our thinking. When you discuss these matters with people here, when you point out the already existing influence and the possibility that it may grow, they decline to talk about such things. We do not like to talk about unpleasant things; we are satisfied with a perfunctory consolation: “There is no ground for Bolshevism here”. It was very recently that we said the same about the socialist and peasant movements: “It is just a handful of agitators for whom agitated crowds are their raison d’être”. Today there is no state in Europe where socialists are absent from the government.
I think otherwise. I do not reject unpleasant things; I prefer to examine them, because only in this way am I able to devise means to eliminate them. I would like to contribute to expanding the public’s knowledge about Bolshevism as far as I can. Given my profession, I have picked just one aspect: legislation. I am now sharing the beginning of my studies, which will be published in the form of a book after I have collected all sources. During this short lecture, I will lobviously only present a small part of my thoughts to you. I have selected the part that is the easiest to understand and assess, that is private law.
Let us start with the general principle. According to paragraph 36 of the Decree promulgated in Collection of Statutes No. 20, Article 420, which concerns the judiciary, in civil and criminal cases the court (which is elected) is to apply existing laws insofar as they have not been abolished by decrees of the central executive committee or councils of people’s commissars and only if they are not in conflict with the socialist sense of justice. What does this mean? – It means that judges who have been elected from among common people and are not professionals will issue rulings according to their discretion and on the basis of a world view that divides people into those who exploit and those who are exploited, considers class struggle to be the essence of life and sees the government of the proletariat as the way to improve social relations. A bourgeois judge heeds the statutes above all else, and where he is given some discretion in his rulings by these statutes, he is guided by the ideal of the law that he holds in his soul. He is not guided by class struggle, but rather by justice.
We do not know what this socialist sense of justice looks like in practice. We have, however, seen a number of decrees which have been issued that concern individual private law matters. Let us see how these relate to previous statutes.
The Decree of 18 December 1917, announced in Collection of Statutes No. 10, Article 160, introduced civil marriages. A church wedding is a private matter. It has a simplified form. There is no need for witnesses, just a statement of consent is required to enter into a marriage. There are just four possible obstacles: age (18 years in men and 16 years in women); relationships in the straight line (in the collateral line only between siblings, including half-siblings), relationships are also deemed to exist where children are born out of wedlock; marital vows and mental illness. There are no banns and the engaged couple only present a written statement that none of the above obstacles are present under pain of penalty for perjury and the invalidity of marriage. Spouses agree on the name they want to use: both using the husband’s surname, both using the wife’s surname or both using both names. Parents give names to their children. Rights and duties of children born out of wedlock towards parents and towards one another are equal to the rights and duties of children born in marriage.
A complaint to establish paternity may be brought by the mother of the child born out of wedlock, his guardian or the child himself.
Divorce with the consent of both parties consists in both spouses presenting themselves to the registrar who simply makes an entry concerning the divorce in the register and that is all. If only one spouse files for divorce, the case goes to court, but the judge does not ask any questions or investigate causes.
A divorce is granted even if just one spouse demands it, and the judge only concerns himself with the fate of the children and the issue of their maintenance; characteristically, despite the fact that the woman has equal rights, there is no obligation on her part to pay maintenance to the husband.
Given the above rules, what exactly is marriage under the Bolshevik regime? It is hard to answer this question, since it is difficult to find the essence that has been left of the existing institution of marriage in the so-called marriage in the Soviet Republic.
Let us now move to property law. In the bourgeois system, this is based on three pillars: private property, inheritance law and freedom of contract. In the Soviet Republic, only ruins have been left of all three.
I will not speak here about the confiscation and sequestration of clothing, of precious metals, and also of other chattels without stating any motives and, of course, any laws either. This may be explained it various ways. However, the nationalisation of banks and industry, and the cancellation of state debt already amounts to a clear abolition of private property rights. I will only mention the fact that soldiers’ families and those persons whose income does not exceed 400 rubles a month have been legally exempt from rent, and the notorious house committees have driven away home owners to seize their homes for themselves. And what about land?
Agrarian legislation is vague, superficial and self-contradictory. This is due to several reasons. On the one hand, the Bolsheviks cannot renounce their ideal of collective farms, but on the other hand they are aware that the introduction of such collective farms would make peasants hostile. This is the origin of contradictions in the decrees issued; on the other hand, institutions have been created whose purpose is to divide peasants and provoke internal struggles among them. In the Decree of 26 October 1917, announced in Collection of Statutes No. 1, Article 3, and thus one of the first decrees issued, it was announced that the ownership of land would be abolished without compensation. However, when we compare individual provisions of this decree among themselves, and also compare it as a whole with the instruction that is attached to it, there are some things that remain unclear, possibly intentionally. We do not know whether private ownership of land was abolished only with respect to large landowners or if land ownership was abolished as such. This vagueness is not removed in the Decree of 4 March 1918, Article 346 on the socialisation of land. One thing is certain, however – that great landowners’ property has been grabbed and taken away from them while peasants retained their private farms, and possibly even extended them as a result of this robbery. As a result, the Bolsheviks, in order to get closer to implementing their collective farm programme, started a campaign encouraging the creation of agricultural communities. This resulted in a second contradiction, since by granting privileges to these communities they have preserved hired labour on land because the communities have received so much land that their members are not able to till it themselves. On the other hand, as they fear affluent peasants and in order to organise a force that would search for grain hidden in villages, they established so-called committees of the rural poor by their Decree of 11 June 1918.
As we can see from the above description, the Bolshevik government has not been successful in its attempt to collectivise farms. The aforementioned decrees may only be applied to the land that has not been grabbed by peasants using violence to date. So far, we do not know how the matter really stands.
In the Decree of 27 April 1918, published in Collection of Statutes No. 34, Article 456, both statutory and testamentary inheritance was abolished and the deceased person’s estate became the property of the state. The spouse, relatives in a straight line and siblings only have the right to maintenance if they are unable to work. However, deceased workers’ estates of up to 10,000 rubles are treated differently, because their management and use does not go to the state, but is instead granted to the persons listed above irrespective of their ability to work, and the execution of the estate depends on the contract or on the judge’s decision. To prevent circumventing this law, in the Decree of 7 May 1918, No. 48, Article 325, donations both inter vivos [between the living] and mortis causa [in case of death] were prohibited.
As we have seen, the socialisation of land among peasants has failed. The same thing will probably happen with respect to inheritance law when it comes to peasants.
Finally, the third principle on which the bourgeois private law system is based: the freedom of contract. If we take into account that the industry has been nationalised, that the trade in grain and agricultural machinery has become monopolised, that land has been socialised, that banks have been nationalised, that state debt has been cancelled, that donations have been prohibited, that the scope of the workers’ insurance is constantly increasing and that rental housing does not exist, it is difficult to find any scope for contracting freedom that remains. The actual situation is of course different. Illegal trade is thriving on a terrifying scale, and hired labor, as we have seen, could not be abolished.
This, in a nutshell, is what Bolshevik private law looks like. If we only look at the letter of the law and not at its execution, we may conclude that only ruins remain of the three pillars of existing private law. In real life, the situation is, as we have seen, somewhat different.
Everything that is happening in Soviet Russia is so alien and opposed to our thinking that we are constantly troubled by the following question: what is the cause of this madness or crime or perhaps – shall we ask tremulously – inevitable historical development?
We realise that the difference between Bolshevism and the status quo that existed everywhere before the war, and today (although deformed) still exists outside Russia, can be described as the difference between coercion and freedom. Despite the charges that economic freedom means chaos and periodic crises, we still miss it. Crises – possibly, but while the eruption of the Vesuvius destroyed Herculaneum and Pompeii, the rest of wonderful Italy still exists. Chaos – or perhaps a complicated, strange apparatus that is constantly being renewed, repaired and reformed. So where does coercion come from?
I would like to present my thoughts on this subject. An organisation based on coercion is one created by reason, built on logic and based on calculations. What is the meaning of such a reasoned organisation for the development of mankind? To understand this, let us consider a comparison. A talented painter or poet create works that delight us, but we do not know how they do it. Now let us imagine a man with a compass and a ruler in his hand who is painting a portrait using an anatomical atlas; or another man who has studied metre, searches for rhymes in the dictionary and writes poems. We will notice the difference right away. The same phenomenon can be observed with respect to political forms. Thus I would summarise the problem posed by Bolshevism in the following manner: does humanity have creative potential or do we live in an age in which it has atrophied? I am not ready to give a definite answer to this question, but I know one thing for sure: if we still have this creative potential and if we are not heading for a fall yet, then we can use this potential only if we become actors and stop being just spectators to the show that history has visited upon us. There is no doubt that in Russia, Bolshevism rules because peasants have been blinded by their class-selfishness: they are satisfied that they gained land, but cannot see that Russia’s rulers look at them with derision, knowing that their grip on land is only temporary. There is a profound lesson in this, especially for our nation, since it is only now that peasants have gained a voice in Poland. Thus when it comes to saving our culture, we should call upon them to develop their as yet unused creative forces.
 Alexander Kolchak (1874–1920) – Russian admiral, commander of the Black Sea Fleet (1916–1917), one of the Whites’ leaders during the Russian Civil War (1918–1920). Handed over to the Bolsheviks by the Czechoslovak Legion, which was meant to protect him, he was shot without a trial.
 Anton Denikin (1872–1947) – Russian general. He took part in the Russo-Japanese War (1904–1905), and commanded the Western Front during the First World War. From 1919 onwards, he commanded the anti-Bolshevik Armed Forces of the South of Russia, but their offensive on Moscow faltered. In April 1920, he resigned his command to Pyotr Wrangel and left for the West.
 Pyotr Wrangel (1878–1928) – Russian general, participant of the Russo-Japanese War and World War I. After the outbreak of the Russian Revolution, he served in Denikin’s army. As the commander of the southern Russian army, he fought the Bolsheviks. In November 1920, he evacuated most of his troops to Constantinople. He died in exile.