Stanislaw Marian KUTRZEBA (1876-1946)
Lawyer and historian
of Polish law. B. Nov. 15, 1876, Cracow, the son of an artisan.
He wrote more than four hundred works on the history of the Polish
and Lithuanian constitution, he was a consultant for the Polish
delegation to the Versailles Conference in 1919, and in 1925 he
took part in the government delegation discussing with Czechoslovakia
the problem of delimiting the Southern border. Honorary member of
PAU since 1916, full member since 1918, General Secretary since
1926, and President in 1939. Released from the Sachsenhausen concentration
camp, he joined the conspiratorial University as the Dean of Law
Department, still co-ordinating the work of PAU and conducting an
active charity work as member of the so-called Committee of Three.
As President of PAU, in mid-1945 he left for Moscow to attend a
congress of the Soviet Academy of Sciences and took part in talks
which led to the creation of the Government of National Unity. D.
Jan. 7, 1946, Cracow.
The selected fragments
are from Pañstwa totalne.
Future"), Gebethner i Wollf: Cracow 1937, pp. 3-16.
The appellation "totalitarian", apparently first used by Mussolini, came
later than the totalitarian state itself, but preceded it only by
a few years. It is usually used in reference to the constitutions
of Italy and Germany, but in fact it could also be applied to the
Soviet constitution. For while Soviet Union sharply differs from
Germany and Italy in the conception of social life, forms of national
constitution and models of state activity display marked similarities.
For whether we are dealing with the peculiar concept of state endowed
with its own life, as in Italy ("everything for the state, everything
through the state, nothing against the state"), or with the Volk, racially pure, whose good everything
is to be subordinated to, or with the proletarian idea - in constitutional
terms all these conceptions manifest themselves in omnipotence of
the state, identified with the monopolistic party of the Fascists,
National Socialists or Bolsheviks. [...]
Admittedly, totalitarian states can boast of major achievements. Europe,
and not only Europe, curtseyed to the Soviets; until so recently
they had been ostracized, denounced and vilified, diplomatic relations
had been broken..., but the West soon forgot what it had been charging
them with; commercial and political treaties were concluded, the
Soviets were invited to join the League of Nations, the West was
happy to see them in the League's highest body - the Council. [...]
So there are successes - and huge ones at that. What do we attribute them
to? I will ascribe them - somewhat simplifying the solution of the
riddle - to three sources.
The totalitarian state was able hugely to elevate the idea of state; limiting
the significance of the individual, having no time for individual
rights, the totalitarian state asks of the individual that he serve
the state and totally subordinate himself to it. The state and its
needs come first; the existence of individuals is mentioned with
some embarrassment. The state is to make decisions, all actions
must be taken in accordance with its will and with a view to its
good. The state demands great efforts and extraordinary privations
of the individuals. Let them go without meat for several days, let
them have just one meal a day; after all, one can live without butter,
one can make do with substitutes, like during a war, even if what
you eat is horrible, because guns are more important... to use an
example from everyday life. The concept of five-year plans was created
in Russia; for five years we struggle, make do with little, in order
to carry out a grand project, and then things will be better. And
then, after these five years, there is a new grand project, a new
five-year plan, new privations.
This acting in terms of projects is something new, though. Imposing them
from above, demanding from citizens that they unquestioningly follow
the authorities - this is not new; the absolute state from the turn
of the eighteenth century also believed that intellectual capacities
of the subjects are good enough only to follow commands from above.
What is new is this whole brilliant spectacle which arouses zeal,
enthusiasm of the people, makes them liable to accept all kinds
of sacrifices, turns taxes into willing gifts, compensates for shortages
with joy; only that, from what I hear, laughter and gaiety are somehow
not in evidence. Hence all these incessant parades of tens and hundreds
of thousands, resounding with singing by Horst Wessel or Giovinezza,
with cries saluting the leaders. A truly brilliant, astounding strategy.
How dreary in comparison was the execution of commands issued by
absolute monarchs. And today, it is like an operation with chloroform.
Or rather some kind of laughing gas.
Another source of Soviet successes is significant especially in the context
of foreign policy. I mean here the return to secrecy in diplomatic
actions. During the war it was proposed to remove secrecy from diplomacy
as the main factor leading to war; it was demanded that there were
no secret treaties and even that negotiations be held in the open.
In states with parliaments foreign policy can never be entirely
secret. Especially if the parliament is empowered to decide about
war. Unless the parliament is only an embellishment. On the other
hand, secrecy is perfectly suited to concealing one's intentions,
to making unexpected moves, to taking the enemy - or even friend
- by surprise.
But there are also shadows. And what shadows! When I think of them, they
are getting longer and longer in my eyes. They are getting darker.
The motto of a totalitarian state is [...] obeying orders; and going
to war, if ordered to do so. What you do not have to do is think.
More than that, thinking is undesirable in totalitarian states,
just as it was undesirable in the absolute states of the eighteenth
and nineteenth century. Thinking is the responsibility of the "leader",
the elite called to prepare plans as ordered by the leader, to carry
them out, to govern. But it is impossible to forbid thinking. So
the leaders of totalitarian states do everything in their power
to channel thinking in the desired direction. One can educate society
through reason or through emotion. The way through emotion is easier.
You proclaim grandiose, noble causes. For ordinary people regard
thinking as hard work, they prefer to accept ready-made formulas,
they avail themselves of these formulas if they suit their temper,
their inchoate appetites; and obviously you can even create such
appetites in this manner, sometimes without much effort. [...] Dictatorship
never liked thinking and criticism - and still does not like them.
And little wonder: nobody likes criticism if it concerns them, especially
if it could undermine their position.
But if it is impossible to forbid thinking, you can forbid external manifesting
of undesirable thoughts - you can remove motivations to develop
these thoughts, to turn them into criticism. And so: censorship
of the spoken and written word. And so: only government press allowed
to exist, as it is in Russia, or imposing strict government directives
on the press. [...] And the dissenters from orthodoxy, expressing
their criticism or even suspected of harbouring it, find shelter
in spacious isolation camps. Just in case. Provided that they have
not sneaked abroad and have not founded an émigré community. But
have all of them done that? Is it not likely that there stayed enough
of those who want to think and criticize, but remain silent for
the time being? There might be tens and hundreds of thousands of
them! You can neither expel such a number abroad nor lock them up
in isolation camps. Are they there or not? And how many? Who can
know? And will those who now subscribe to the causes of the totalitarian
state, remain loyal to them if there is some change, some crisis,
external or internal? Why, even rats flee from a sinking ship. What
a heavy burden - a dull nervous tension, when you incessantly have
to spy, put under surveillance, pre-empt.
But can you really trust even those who belong to the ruling elite? Should
we not expect inner feuding between these ambitious, power-greedy
people? Will the authority of the leader suffice to maintain unity
among those ruling, but quite numerous individuals? One must also
pay attention to that. For if there is a split on top, power may
be weakened, inner strife may undermine authority. Hence such an
opposition also has to be repressed - and repressed relentlessly,
with bullet and scaffold, even for those formerly most distinguished
for the cause, regarded as heroes. [...] Recently such distinguished
comrades as Kamenev, Zinoviev and others were sent to their death
in the name of common good. And an interesting secret of the Soviets
is that the accused had humiliated themselves, confessed their guilt,
themselves demanded the death penalty; this wish was generously
But the totalitarian state deprives its subjects not only of freedom of
thought and expression. It also takes away another achievement for
which they have fought a centuries-long struggle - the rule of law:
defining their rights and obligations, establishing judicial independence.
Especially the constitutional state, which since the late the eighteenth
century was gaining dominance in Europe, and in the first post-war
years reached the zenith of its power, strictly codified civil rights,
precluded the predominance of the legislative or administration
through introducing separation of power, placed the judicial process
in the hands of independent judges in general courts or newly created
administrative ones. In totalitarian states these rights disappeared;
there are no guarantees of personal liberty, no inviolability of
property, no right of assembly and association, etc. Introducing
the concept of analogous crime into the criminal law in some - not
all - of these countries removed the assurance that you will not
be prosecuted if the criminal code does not penalize a given act.
The judge is to adjudicate not on the basis of the Roman principle
of giving to everyone what is due to him - suum cuquie tribuere - but from the point of view of what is good
for the state and its purposes. The principles which had been won
in the course of a long political battle, which were regarded as
the greatest attainment of societies, were struck out. Law is replaced
with another concept, that of authority. The highest authority,
namely the authority of the leader, is decisive. Lower authorities,
down to the smallest ones, are reflections of the principal one.
This leads to the expansion of administration and its scope of activities,
to the removal of parliament as a reviewing body, to circumscribing
or liquidating self-government. The law becomes fluid. Judicial
decisions to a growing extent depend on views of these larger or
smaller authorities, which not always occupy positions adequate
to their tasks, which are not always willing to abide by legal rules,
which need not fear that they will be made accountable for their
decisions, since they regard themselves as emanations of the highest,
unaccountable power. And society has to obey.