Abstract
The family is an elementary social organization of wide and varied significance. Confucius considered the family the foundation of the whole social and political order. The experience of ancient Rome, and later of Japan, proved that the state is strong insofar as the family is a solid unit. Napoleon suggested to his jurists when the Code Civil was in preparation, that they ought to strengthen family ties. ‘If members of the family’ he said, ‘are responsible to the head of the family, and the head of the family is responsible to me, I shall be able to maintain order in France’ The Socialist Anton Menger opposed any artificial reorganization of the family, especially the abolition of marriage, and he predicted resistance on the part of a great majority of the population to such reforms. 1
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References
Anton Menger, Neue Staatslehre, 2 Aufl. Jena. Q. Fischer 1904, Chapter XII.
Even in a country of such solid traditions as Great Britain, the number of divorces has increased during the last thirty years from 4,549 in 1919 to 7,800 in 1939, and 42,200 in 1949. See ‘Family Life in Britain since the First World War/ by David R. Mace. (The Annals of the American Academy of Political and Social Sciences, Nov. 1950, p. 179, 182).
American sociologist have for a long time been anxious about the constant increase in the number of divorces in the United States. Professor Willcox has estimated that by 1950 one-fourth of all marriages in the United States will be terminated by divorce. See Ch. Ellwood, Sociology and Modern Social Problems (American Book Company, N. Y. 1919, pp. 150–51.) This prognosis proved to be correct. The average number of divorces per one hundred marriages was 5.56 during the 1881–90 decade and 25.89 in the 1940–9 decade representing an increase of 446 per cent.’ (Kingsley Davis, ‘Statistical Perspective on Marriage and Divorce’ The Annals, Nov. 1950, pp. 15–16).
The wife was obligated to ‘dwell with him (husband) in love, respect and unlimited obedience, to show him every gratification and attachment.’ In return, the husband was bound to support his wife according to his ability and ‘to love her as his own flesh, to live in harmony with her, to respect her, to defend her, to forgive her inadequacies and to lighten her infirmities.’ (Arts. 106 and 107 of Volume X, part 1 of the general Code of Laws).
Ibid, Arts. 178 and 179.
Ibid, Art. 165.
The law of June 3, 1902, improved conditions for children ‘born out of wedlock,’ who before then were called ‘illegitimate children.’ The law of March 12, 1914, introduced provisions similar to the French code (Art. 306 of the Code Civil) granting the right of couples to separate in case of brutality, serious offences, violation of marital duties, abuse of marital rights, and the contraction of sicknesses which threaten the life or health of the other party or their progeny.
Svod zakonov, vol. X, part 1, Art. 85.
Cf. the famous novel by Leo Tolstoy, Anna Karenina.
G. C. Guins, ‘V kirgizskikh aulakh,’ Istoricheskii Vestnik, October, 1913.
‘Church marriage is a private affair of those contracting it, while civil marriage is obligatory.’ Note to Art. 1 of the Decree of December 18, 1917. ‘Children born out of wedlock are on equal terms with those born in wedlock with regard to the rights and duties of parents toward children, and likewise of children toward parents.’ (Ibid, Art. 10). ‘Marriage is annuled by the petition of both parties, or even of one of them.’ (Art. 1 of the Decree of December 19, 1917, on divorce). Both decrees may be found in Gazeta vremennogo rabochego i krestianskogo pravitelstva, December 18 and 19, 1917, Nos. 36, 37.
Cf. Art. 71 : ‘Difference of religion between persons intending to enter into marriage does not constitute an impediment;’ Art. 72: ‘the monastic state, priesthood or the diaconate are not impediments to marriage;’ Art. 73: ‘marriage is not prohibited to persons who have taken a vow of celibacy even if such persons are members of the white (Catholic) or black regular clergy.’ Collection of Laws, 1918, Nos. 76, 77, Section 818.
Code of October 17, 1918, Arts. 52 and 87.
Article 107.
Article 153. A similar principle, eliminating the parental authority of a father abusing his rights toward his children or known as a man of dishonest and immoral behavior, was already known to modern law. Compare Art. 203 of the Civil Code of California. § 1666 of the B.G.B. opened a series of similar provisions in other countries.
On October 20, 1918, the Cheka ordered the prosecution of those persons, who
after a religious ceremony of marriage, gave the surname of the alleged husband to the bride contrary to the law, which did not recognize the religious ceremony of marriage. Priests who assist in this act, and militsia officials who issue passports in which they recognize the illegal marriage, all perform ‘a counter-revolutionary act,’ the Cheka explained. See A. Goikhbarg, ‘Brachnoe, semeinoe i opekunskoe pravo sovetskoi respubliki’ (Moscow, 1920).
The Soviet writer Babel, in one of his stories called ‘A letter,’ published in the collection Red Cavalry, relates how a commander of a company in Denikin’s army killed his son, a soldier in the Red Army and how later his oldest son, a commander of a Red Cavalry Regiment, caught up with his father and ‘finished him off.’
A. Goikhbarg, Sravnitelnoe semeinoe pravo, 2nd edition, 1927, emphasized ‘a trend toward the factual abolition of marriage.’ (p. 182). In another work of the same period, it was declared: ‘Socialism brings the end of the family.’ S. Wolfson, Sociology of Marriage and the Family, in Russian, 1929, p. 75.
The Family in the U.S.S.R., Documents and Reading sedited by Rudolph Schlesinger (London, 1949), pp. 53, 57. Hereinafter referred to as The Family.
In one of the stories written by A. M. Kollontai, included in her book Love of the Toiling Bees, her heroine, Zhenia, explains her view of love as follows: ‘Sex life for me means purely physical pleasure—I change my lovers according to my moods. Now I am pregnant, but I don’t care ...’ The Family, Document No. 4, pp. 72–74; also her Free Love (London, 1932).
K. Marx and F. Engels, Works (Russian edition). Vol. I, p. 266. Quoted by S. Wolfson in his article ‘Sotsialism i Semiia,’ Pod znamenem Marksizma, 1936, pp. 31–64.
The Family, Document No. 5, pp. 75–79.
Code of Laws on Marriage and Divorce, the Family, and Guardianship, November 19, 1926. Collection of Laws and Decrees of the R.S.F.S.R., 1926, No. 82, section 612.
A comparative study of the differences in the family codes of the three principal Union Republics is given by Freund, Das Zivilrecht in der Sowietunion, erste Lieferung, Das Familienrecht der Sowjetrepubliken Russland, Ukraine, Weisrussland, 1927.
A church wedding cannot be considered as evidence of de facto marriage, without other evidence (Article 2 of the code of 1926). The code grants the protection of de facto marriage ‘only where there is evidence of a joint household, of co-habitation, and of letters and other documents bearing witness to these marital relations.’ The Family, p. 130.
Article 28–32 of the Code of 1926. ‘The official father has no privileges’ as regards origin of children. Goikhbarg, op. cit., p. 115. ‘Indeed, bigamy itself was a sociological rather than a legal concept,’ H. J. Berman, Justice in Russia, p. 243, the same author cites an interesting case of bigamy.
The Family, Document No. 6, pp. 101, 106, 151.
Decree of November 18, 1920. Collection of Laws, 1920, No. 10, section 471. Also The Family, Document No. 3 (d), p. 44.
See stenographic minutes, The Family, Document No. 6, p. 114. Polygamy among Moslems is specifically prosecuted (Art. 231 of the Penal Code) as a custom violating the woman’s rights and dignity.
Quoted by J.” Scheftel, in Eliaschevitch, op. cit., Ill, p. 354; also The Family, p. 90.
Article 183 of the code of 1918.
‘Adoption shall be allowed only of minors and juveniles under age, and exclusively in the interests of the children.’ Article 57 of the code of 1926.
During the transitional period, guardianship must have an educative and exemplary character to prove that social breeding and education produce better results than education by loving, but ignorant parents, not having all the means and opportunities which are at the disposal of society. Guardianship was to help parents lose their habit ‘of a narrow and unintelligent love for children which is manifested in the trend to hold children at home, not to let them go out of the narrow circle of family life, to contract their horizons, and to make of them, instead of members of a large society whose name is Humanity, egoists as they are themselves, individualists
who put forward their personal interests to the damage of society.’ A. Goikhbarg, Sravnitelnoe sovetskoe pravo, p. 230.
See Article 69 of the Code of Laws on Marriage, and comments in Gsovski, Soviet Civil Law, Vol. II, p. 263.
Art. 14 (w) of the Constitution of 1936, as amended in 1947.
Pod znamenem Marksizma, 1936. Articles by S. Wolfison, V. Svetlov, V. Boshko and A Godes. The most essential parts of these articles are reproduced in The Family, Documents No. 14 and 15, p. 333 ff.
Ibid., pp. 360–361. ‘The Soviet State is by no means indifferent to the form of development taken by marital relations, relations which tend to the formation of family, which, in turn, is a definite form of social life.’ (Godes, see p. 361).
‘Data from a survey of some hundreds of alimony suits and from observations of 2,000 married metal workers, made by the Central Institute for the Protection of Motherhood and Childhood of the R.S.F.S.R. (Izvestia, August 9, 1935) showed that more than 20 per cent of marriages are concluded as a result of one month’s acquaintance. This proves that one of the reasons for divorces is the frivolous attitude to marriage among some of the workers of our country.’ ‘A girl from one of the collective farms who one morning met a student, Nikitin, who had just arrived on a holiday, and married him the same evening. And when this girl became a mother, it was disclosed that Nikitin was already a married man who could not, therefore, continue to live with her.’ ‘There was a case in the Dyedovskaia Works where a young woman who quarrelled with her husband on the way from the Registrar’s Officer where they had just been married, immediately turned back to the Registrar’s to obtain a divorce. (Pravda, August n, 1935). ‘A woman who came to the police station to announce that her husband, whom she recently met, had robbed her ... was unable to give her husband’s surname,’ etc. The Family, pp. 341–342.
John Hazard, ‘Law and the Soviet Family,’ Wisconsin Law Review, 1939, pp. 224–253.
The Family, p. 361.
Art. 1 of the Code of Laws on Marriage, Family and Guardianship, as amended April 16, 1945.
Art. 140 of the Code of 1926.
U.S.S.R. Laws, text 309, Arts. 27, 28.
Articles 18–19 of the Code on Marriages, as amended April 16, 1945.
G. M. Sverdlov, ‘Some Problems of Judicial Divorce,’ Sovetskoe gosudarstvo i pravo, 1946, No. 7; and the Report of Comrade Abramov in the Institute of Law of the U.S.S.R., ibid., 1949, No. 2, pp. 59–60.
Rudolph Schlesinger, The Spirit of Post-War Russia (London, 1947), pp. 56–58.
N. S. Timasheff, The Great Retreat (New York, 1946), pp. 201–202.
Collected Laws of the U.S.S.R., 1936, No. 34, text 309; also Art. 140, 140-a and 140-b of the Penal Code, as amended by the law of May 10, 1937, Laws of the U.S.S.R., Art. 6, text 40.
The Family, ‘Conclusion,’ pp. 397, 404.
Ukase of July 8, 1944 [Vedomosti, 1944, No. 37), amended November 25, 1947 [Vedomosti, 1947, No. 41).
Article 20 of the decree of July 8, 1944. This provision restored a notorious French law, ‘la recherche de la paternité est interdite,’ abrogated in 1912.
Article 18 of the decree of May 31, 1935 : The militsia has the right to fine parents up to 200 rubles, without applying to the courts, for the mischief and street hooliganism of their children. Article 19: Parents and guardians are financially responsible for the misdemeanors of their children.
Article 20: The representatives of the People’s Commissariat of Education or of the militsia are required to report lack of parental supervision to the social organization at the parents’ place of occupation.
Article 22 : If the parents are not able to supervise their child’s conduct, the People’s Commissar of Education petitions the courts to take the child from the parents and place him in a children’s home. The parents are obliged to pay the costs of the child’s support in the children’s home.
Article 58 of the Penal Code as amended according to the law of July 20, 1934, and Article 116 of the same code. (See comments and instructions of February 28, 1939, in the official edition of the Penal Code (Moscow, 1947).
The abolition of constraint in marriage had a special significance in some parts of the country among native tribes, where polygamy and the system of purchasing brides had been practiced until recently. There are special provisions in the constitutions of some Union Republics, where such practices had been the rule. Cf. Article 99 of the Constitution of the Kazakh Soviet Socialist Republic: ‘Resistance to the actual emancipation of women (giving minors in marriage or contracting marriage with them, bride purchase, polygamy, restricted choice of husband ...) is punishable.’
The Polish law ‘On Marriage and Family’ of September 27, 1945, follows the pattern of Soviet legislation; its chief trend is to emancipate marriage and family from the influence of the Roman Catholic Church, Sovetskoe Gosudarstvo i Pravo, 1950, No. 7, p. 84.
The Chinese Law on Marriage of May 1, 1950, isued for the transitional period, pursues the goal ‘to destroy first of all the old system ... and to ensure to the people the full freedom of marriage.’ The general principles of the Chinese law on Marriage are similar to the principles of the Soviet Family law. In Czechoslovakia a special Family Code (Law No. 265 of Dec. 7, 1949) repeats also the Soviet provisions concerning marriage, divorce (Art. 30) and even the right of the wife to deny that her husband is the father of her new born child (Art. 51).
See Timashefi, op. cit., p. 196.
Soviet literature, reflecting as usual the prevailing trends of Soviet policy, supports family ties and its moral foundations. Illustrations are A. Koptiaeva’s novel, Comrade Anna and Lidin’s stories: ‘Mother,’ ‘Daughter,’ ‘Friends,’ and ‘Brotherhood’ in his collection, Izbrannoe (Sov. Pisatel, 1948).
John N. Hazard in his article ‘The Child Under Soviet Law,’ University of Chicago Law Review, Vol. 5, 1937–1938, pp. 424–495 cited official Soviet data which showed that juvenile delinquency reached enormous proportions because of the lack oi family control. In Leningrad, in 1934 and 1935, ninety per cent of the delinquents spent their leisure time in an unorganized way outside the family, while only seven per cent of the offenders spent their recreation hours within the family circle. The 2, 111 cases examined in Moscow during the same period showed a similar situation. Of this group eighty-eight per cent did not have satisfactory family supervision, while seven and seven tenths per cent spent their time with their families. Thirty-five per cent of the children in correctional labor institutions during the same period were homeless waifs. Cf. also Timasheff, op. cit., p. 322.
U.S.S.R. Laws, 1940, texts 603, 604.
In connection with the abolition of co-education, Izvestia published an article (‘On the Education of Boys and Girls’) on August 10, 1943, in which its author, Orlov, explained: ‘Boys’ schools should have proper grounds for military training and for carrying a specially organized military department in accordance with the program of military education. In girls’ schools, the military department should serve the purposes of training for sanitary work, intelligence, etc’
In all civilized countries family law acquires the character of an institution of public law. Parental authority is carried out in the interests of children and society, and marital relations are based on mutual respect, dignity and independence, protected by law. This trend is expressed sharply in Soviet law. ‘Family law cannot be isolated from the activity of the Soviet government.’ G. M. Sverdlov, ‘0 predmete i sisteme sotsialisticheskogo semeinogo prava,’ Sovetskoe gosudarstvo i pravo, 1941, No. 1, pp. 57–70. Cf. ‘Soviet Family Legislation (Sverdlov)’ Soviet studies, Oct. 1950.
Article 183 of the code of 1918, and Article 57 of the code of 1926. The various motives for which adoption was originally prohibited in the Soviet Union are cited by J. N. Hazard, ‘The Child under Soviet Law,’ University of Chicago Law Review, Vol. 5, pp. 429–430.
See above notes 28, 29.
‘Property earned by the husband and wife during the continuance of their marriage shall be regarded as their common property.’
‘The rights of either husband or wife in respect to land tenure and property used in common by them as members of a peasant household are defined by sections 66 and 67 of the Land Code and by enactments published to supplement the same.’ (Article 10 of the Code of Laws on Marriage and Note to Article 10).
Foreign legislation usually allows couples to determine their property relations. The German code, B.G.B., indicates four possible systems: 1426–31; 1437–1518; 1519–48; 1549–57. Cf. also California Civil Code, sections 159–167.
Vedomosti Verkhovnogo Soveta S.S.S.R., No. 8, March 6, 1947.
According to the Soviet Code of Correctional Labor of August 1, 1933 (Collection of Laws, No. 48, text 208), ‘persons are sent to correctional labor camps who have been condemned by, (a) a sentence passed by a tribunal: (b) a decree of an administrative body.’ (Art. 8).
Some persons are sent to correctional camps without the right to correspond, and then they are lost to their families, especially since there are unlimited ways of prolonging the term of confinement (U.S.S.R. Laws, 1934, text 284, Art. 7; Decree of June 22, 1941, Vedomosti, 1941, No. 29).
In cases when prosecution and punishment threaten the families of criminals, the latter may prefer to be divorced ; here the anti-divorce trend becomes harmful for the individual and favorable to the government cause.
The significance of the recent reforms in Soviet family law, especially from the point of view of the interests and advantages of the ‘upper classes’ and from the point of view of their influence on social mobility, has been discussed by Lewis A. Coser —’Some aspects of Soviet Family Policy,’ in The American Journal of Sociology, March 1951, pp. 424–34, accompanied with ‘Comment’ by Alex Inkeles, pp. 434–35 and ‘Rejoinder’ by Lewis A. Coser, 436–37.
See also Dietrich A. Loeber. ‘Der Umbruch im Eherecht der Sowietunion’ (Ost-Europa, Juni 1952, pp. 169–176).
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Guins, G.C. (1954). Family Law. In: Soviet Law and Soviet Society. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0869-8_23
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