Konstanty
GRZYBOWSKI (1901-1970)
Lawyer and historian of political
and legal doctrines. B. Feb. 17, 1901, Zator, as a son of a physician.
1933-34 editor of Czas,
1930-39 editor of Przeglšd
Współczesny; published Od
dyktatury ku kompromisowi konstytucyjnemu ("From Dictatorship
towards Constitutional Compromise", 1930), Dwa
głosy o konserwatyzmie i rewolucji ("Two Voices on Conservatism
and Revolution", with A. Listowski, 1931). From 1962 he headed the
newly created Faculty of History of Political and Legal Doctrines,
the first of its kind in Poland. Before the war he published works
on the political constitution of Germany and Soviet Union, criticized
the March Constitution and praised the April Constitution; after
the war he was preoccupied mainly with the history of parliamentarism
(Historia doktryn politycznych i prawnych. Od państwa
niewolniczego do rewolucji burżuazyjnych ["History of Political and Legal Doctrines. From the Slavery State to
the Bourgeois Revolutions"], 1967); he published numerous works
on the sixteenth and seventeenth century, the two-volume Refleksje sceptyczne ("Sceptical Reflections", 1970) and - unfavourably
received - Doktryna polityczna
i społeczna papiestwa 1789-1968 ("The Political and Social Doctrine
of the Papacy 1789-1968", with B. Sobolewska). D. June 19, 1970,
in an accident in Cracow.
The selected fragments are from Ustrój Zwišzku Socjalistycznych Sowieckich
Republik. Doktryna i konstytucja ("The Political
System of the Union of Soviet Socialist Republics. Doctrine and
Constitution"), Krakowska Spółka Wydawnicza: Cracow 1929, pp. 5,
16-18, 22-24 and 44-47.
Bolshevism is a battle against mysticism fought
in such a way that it itself turns into a mysticism. As in the Cromwellian
revolution God served as an explanation and a justification for
the actions of the dictator, so in the Bolshevik revolution the
dictatorial proletariat seeks its justification in a dogmatically,
uncritically, religiously adopted materialist historiosophy. The
proletariat plays the role of the savior and redeemer, and "revolution",
the "revolutionary spirit" replace religious inspiration, ecstasy.
[...]
The Soviet constitution is for me an indication
that one cannot build a state and a constitution, one cannot create
norms on metaphysical and irrational foundations. A system where
lawfulness is defined in terms of revolutionary legality, where
the only norm is the temporary character of the constitution as
a means of realizing a distant utopia regarded as a consequence
of natural development, a system where it is left to the discretion
of a person appraising the course of this development to decide
in every particular case what the law is - such a system is a negation
of law. Revolution supplants norms with the arbitrary judgment of
those who decide, and arbitrary judgment established as a rule is
a negation of norms.
In the Soviet doctrine and in the Soviet constitution
it is "class interest" which provides legal norms and "objective
rights", while "norms, that is rules intended to sustain and protect
this interest" are only "subjective elements of law." This principle,
endowing the dogma of the dictatorship of the proletariat with a
normative character, has been consistently enforced by Soviet law.
Right after the revolution the courts were ordered to "base their
verdicts and sentences on the statutes promulgated by the deposed
government only if these statutes were not abolished by the revolution
and are not contrary to the consciousness and idea of revolutionary
law." The abolition of the existing statutes, then, was made dependent
not on legal norms, but on factual and psychological factors: the
"revolution" (not "revolutionary law") and the "consciousness and
idea of revolutionary law" (again, dependent not on revolutionary law itself, but
on its "consciousness" and "idea.") Likewise, the application
of the law issued by revolutionary governments was made dependent
on factual and psychological factors, as it was declared that "in
a whole range of cases violations of the law may be just as compatible
with the [revolutionary] purpose as applying the absolute principle
of legality." Not compatibility with the norm, then, but "compatibility
with the revolutionary purpose" is the guiding principle. Moreover,
even in those places where the need for legality is emphasized,
the goal is not compatibility with the norm, but the "discipline
of the state apparatus", that is submission within the hierarchy
of institutions, and not within the hierarchy of norms.
Once we notice that the principles of "revolutionary
legality" and "revolutionary idea" do not have any specific legal
meaning, and hence that the decision of whether the application
of a statute is compatible with these principles is left to the
institution applying the norm and depends on how this institution
appraises the factual circumstances, we arrive at the following
conclusion: the concept of a general norm which is binding for those
applying it is unknown to Soviet law. The Soviet State, making the
content of a decision dependent on the will of the organ issuing
the decision, turns every decision into an administrative act with
unlimited discretion (overturning a decision of a lower organ by
a higher organ is based on considerations of purpose and not violation
of the norm; it is based on a different appraisal of the factual
circumstances by the higher organ, and hence it does not qualify
discretion). Each organ is simultaneously a legislator, an administrator,
and a judge. Not only by declaring in the constitution that the
same organs perform legislative and executive functions, but also
through the principle of revolutionary legality Soviet law rejected
the principle of separation of powers.
1) The revolution is a period when [...] pre-Revolutionary
law no longer exists, and a new one has yet to develop. The Soviet
State is revolution made permanent, for it is a state where the
old law has been destroyed, and the creation of a new one has been
postponed until some distant and mythical future.
2) The revolution is a period when the self-conscious
will of the new rulers enacts a utopia, which is their motivating
force, their self-conscious, rationally conceived program. The
Soviet State is a state where utopia is not enacted by
the new rulers, but it is expected to enact itself in an organic,
natural process of development, and the rulers confine themselves
to removing factors which, in their view, constitute
mechanical obstacles to natural progress.
3) The dictatorship of the proletariat is a
system where the power exercised by the dictator is not restricted
by any norm, except for the "revolutionary idea", subject to his
own interpretation, and he shifts the responsibility for exercising
the dictatorship on the myth of materialist historiosophy. He is
not constrained by anything but his faith. He commands the future
to justify this faith. [...]
The Soviet constitution displays a number of
characteristic features, which mark it off clearly and sharply from
the political system now dominant among states belonging to European-American
civilization.
a) Within the Soviet constitution, along with
a system of "state" powers there exists a sovereign system of the
Soviet communist party, the only lawful party in the Soviet State.
Using a number of means, the party determines the policy of the
Russian State. [...]
b) The Soviet system is a political expression
of the dictatorship of the proletariat doctrine. "The soviets constitute
the immediate organization of the working and exploited masses"
(Lenin). The soviets are collegiate bodies, debating and directing,
selected for governing the state by the "working population" (proletariat
of workers, soldiers and peasants).
c) The Soviet State is not a state where the
rule of law prevails. The activities of state institutions and the
rights and obligations of citizens are not based on objective legal
norms that have been published and can be modified only in a certain
predetermined way. The main principle of the political order is
a certain socio-political doctrine, the communist doctrine, and
the norms of the written law are only guidelines. Should applying
these norms be detrimental to the interests of the proletariat and
to the social revolution, state organs are obliged to overrule these
norms and act in accordance with the interests of the proletariat.
[...] Soviet statutes, including the constitution, are changed and
amended in a completely arbitrary way by arbitrary organs, sometimes
quite obviously not empowered to do so. The crucial concept for
understanding the essence of Soviet law is therefore "revolutionary
legality." The revolutionary spirit is in the Soviet Union a conservative
element, a stable legal element. "Revolutionary legality consists
in the precise implementation of [...] statutes, but only inasmuch
as they are in accordance with the requirements of the revolutionary
conscience and the class interests of the proletariat" (as is proclaimed
by the "official organ of the people's Commissariat of Justice"
- editor's note).
The (almost unrestricted) right of higher state
organs to change every decree of a lower organ, although formally
lawful, goes counter to the goal of Soviet legislation defined above,
and, to make matters even worse, it renders the individual helpless
against the centralized bureaucratic state machinery, again directed
by the communist party.
d) The Soviet State is a class state. The principle
of equality before the law is unknown to Soviet law. Only members
of the working class (the proletariat) enjoy political rights and,
to some degree, civil rights, and this group includes members of
the Communist Party who are accorded special privileges. Members
of other social classes (the bourgeoisie) do not enjoy these rights,
or have them only to a limited degree.
e) In the organization of state power the Soviet
State does not recognize the principle of the separation of powers.
The same organs perform legislative and administrative functions,
and the courts are administrative bodies separate only in a technical
sense. The principle of judicial independence is regarded as a fiction
and is not recognized. Since the principle of legality is not recognized,
the hierarchy of norms disappears, and thus the material difference
between a legislative act, an administrative act, and a verdict
loses its meaning.
f) The organization of Soviet powers is based
on the collegiate principle. Generally each office is held collectively,
on the lowest level (that of the municipality and village) officials
are chosen in direct elections, and on higher levels in indirect
elections by lower organs or by delegates of lower organs. Franchise
is not universal, not equal, and the ballot is not secret. [...]
In the West we have become accustomed to regard the constitution as an
expression, a crystallization of a program, as a realization and
establishment of certain ideas, as a stable point amidst the changing
life of societies. Here on the contrary: there is no stable point.
There is only continuous change, continuous new creation (revolution,
the overthrowing of what is, also constitutes a kind of creation,
and a highly intense one at that); there are only "experiments."
It is not a program or an idea that finds its expression on the
pages of the constitution. A program, an idea is something distant
and removed, while the constitution is only an imperfect and changing means, only an
expression of a transient need, only a way to survive the period
when the world is divided in two enemy camps: the capitalist and
the socialist one. Moreover, we should not underestimate the fact
that the Soviet constitution is directed against the enemy camp, and not towards its own ideology.
In this sense it is "provisional." Precisely
on account of this provisional character Soviet political life incorporates
a number of contradictions that arise between the actual circumstances
and the Soviet program. The Soviet ideology, the words of the constitution,
suggest that the centers of political life should be placed at the
bottom, on the lowest levels of the Soviet system. The first period
of the revolution, the period when every village was a separate
unit, and every administrative district (volost')
and province was a sovereign state, constituted the classic era of the Soviet
system, now long past. In practice there is today only one center
and in practice all power remains in the hands of this center and
of its administrative organs.
This practical result derives not only from
the concentration of power necessary in a period of revolution and
counterrevolution, but also from another contradiction embodied
in Soviet political life. The socialist, urban and anticapitalist
Soviet ideology has been implanted in a peasant country, a country
of small capital and private property. The result: communism in
the center, anticommunism on the peripheries. The centralization
of power and the bureaucratization of the state are means of rectifying
this fact. The centralization of power makes it possible to turn
90% of the peasant votes on the lowest administrative level into
90% of the communist votes on the highest level and to oversee this
process. The monopoly on legality possessed by the communist party
serves to destroy, or to keep in a disorganized state, all the forces
which could in the future produce rivals for communism.
Thus doctrine and social relations, theory and
practice are combined into one whole, whose aim is the following:
to survive the period of struggle against capitalism, to save the
proletarian island stranded on a hostile globe. This constitutes
the greatness of the system. Its tragic character lies in the fact
that it will not survive. Its own wave, the Russian kulak, will
flood this island. Stalin's slogan: "We must reach out towards the
countryside", correctly identifies the greatest danger.