VICHY LAW AND THE HOLOCAUST IN FRANCE by Richard H. Weisberg. New York: New York University Press, 1996. 447 pp. Cloth $45.00.

Reviewed by Daniel C. Kramer, Political Science-Economics-Philosophy Department, College of Staten Island CUNY.
 

The unhappy 1940-1944 interlude of Vichy France under Marshall Henri-Philippe Petain has produced an outpouring of memoirs, documents, scholarly and popular books, monographs, dissertations and articles that if stretched from end to end, would create a paper trail stretching from Paris to Marseilles. Thus when one hears of yet another work about Vichy, he/she must initially ask whether its publication really was necessary.

In the case of Professor Weisberg's book, the answer is a resounding "oui". He has given us a thoroughly-researched, richly-detailed and lucidly-written study of various Vichy phenomena that previous scholars have treated mainly in passing. These include the interpretation of the Petain regime's antisemitic legislation by its bureaucracy and judiciary; the use of those rules to pillage Jewish property; the fate of Jewish lawyers; and the representation of Jewish clients by non-Jewish lawyers before the statelet's courts and functionaries. After a first chapter devoted to the trial of former Prime Minister Leon Blum, who as a Jewish socialist was hated by the Petainists, Weisberg presents us, in Chapter 2, with a snapshot of Vichy's antisemitic laws. One of the first was that of Oct. 3, 1940, banning Jews from occupying certain positions and defining a Jew as an individual with three grandparents of the Jewish race or with two grandparents of that race if his/her spouse were Jewish. This at first applied only to the "unoccupied" part of the country. A German ordinance of September 27, 1940 covered that two/thirds of France (including Paris) that was occupied by the Germans. This ordinance defined a Jew as an individual who belonged to the Jewish religion or who had more than two Jewish grandparents. As Weisberg accurately points out, in some ways Vichy's language was more wide-ranging than the German. (For example, a half-Jew not practicing Judaism could not be a Jew under the Nazi dictate; but would be deemed one under the Vichy act if he/she had married a Jew.)

Weisberg then discusses another crucial Vichy antisemitic statute, that of June 2, 1941. This act, barring Jews from holding certain jobs not covered by the October 3, 1940 measure, covered both unoccupied and occupied zones. It defined a Jew as a person with at least three Jewish grandparents -- or with two such grandparents if his/her spouse had two Jewish grandparents or if he/she were not a practicing Catholic or Protestant. Throughout this chapter and elsewhere Weisberg criticizes French law professors, lawyers and judges for not "going for the jugular", i.e. for not denouncing en masse these discriminatory laws. Instead these groups became immersed in their technicalities and spent time and ink wrestling with the definitional and procedural problems they posed (e.g., who had the burden of proving that a half-Jew was a practicing Christian). Their complicated mental gyrations lightened the burden imposed by these enactments for a few Jews and increased it for others: what incenses Weisberg is that even the "liberal" jurists and attorneys accepted them as binding and merely sought to have them interpreted in a way that would free this or that individual Jew from their chains. He feels that there was a reasonable chance that an organized outcry against them from the bar and the bench might well have protected many Jews from deprivation of property, deportation and loss of life. (The French legal profession of the time may have been intellectually gifted but the framers of the June 2, 1941 law wrote like law school dropouts. If the act is read literally, a "Christian" half-Jew who married a full Jew was not to be considered Jewish while a "Christian" half-Jew who married a half-Jew was. As Weisberg points out, no French lawyers ever bothered to argue that marrying a full Jew gave a half-Jew "Aryan" status.)

The June 2, 1941 law, supplemented by various administrative decrees, limited the number of Jewish lawyers to 2% of the attorneys inscribed in the Bar of each jurisdiction. Chapter 3 demonstrates that this "numerus clausus" kept many Jewish attorneys from practicing their profession and that a not-insignificant number of them were shipped to Auschwitz. Chapter 4 describes how Vichy's second Justice Minister Joseph Barthelemy, a liberal Catholic prior to the war, nonetheless played a role in the drafting and administration of the anti-semitic system while intervening on behalf of individual Jews. Chapter 5 considers the struggle between the ordinary courts on the one hand, and the administrative agency known as the General Commission for Jewish Affairs (CGQJ) plus the administrative courts on the other, over who had the right to decide whether a particular person was Jewish and whether his/her property should be "ayranized", i.e., transferred to a non-Jewish provisional administrator. Chapter 6 reveals additional instances where the French anti-semitic net was broader than the German. For example, the Germans were annoyed by the CGQJ habit of demanding that a half-Jew who wanted to be deemed an Ayran because he/she was a practicing Christian prove that his/her baptismal records were valid: the Germans wanted the agency to presume the legitimacy of these records. More importantly, the Germans until close to the end of the war even in the Reich refrained from sending Jews married to Aryans to concentration camps. To Vichy, if a person were a Jew under its definition, the French ethnicity of his/her spouse would not prevent him/her from being carted to a camp in cases (usually involving non-citizens) where Jews were deportable under French law.

Chapter 7 analyzes how the Vichy regime worked both hand-in-hand with and independently of the Germans to subject Jews to severe economic persecution. Though some courts helped Jews economically distressed by the war and the anti-semitic decrees to get rent reductions, Jewish businesses, apartment buildings, and shares of stock were placed in the hands of Ayran "administrateurs provisoires", who were supposed to act as trustees but who often converted the property to their own use. Jewish bank accounts were blocked; and legacies to Jews had to be handed over to the "administrateur provisoire". Chapter 8, after reverting to the problem of the numerus clausus for Jewish lawyers, paints the portraits of several private, non-Jewish attorneys who represented clients who, e.g., tried to prove they were not Jewish or sought rent reductions. Chapter 9 considers various Vichy proposals to denaturalize Jews who had become French citizens since 1927. The denaturalization process facilitated the Nazi plan of deporting Jews to the east for work in German factories and ultimate death in the concentration camps, since the Petainists refused to hand over Jews of French nationality to the Gestapo. Interestingly, the most radical of these denaturalization plans never became law thanks to a "rare bout of conscience" (p. 368) on the part of Marshal Petain. The chapter also adumbrates the quisling government's creation of special courts to try suspected communists, anarchists, and perpetrators of violence against the occupying forces. (All of the country was occupied by the Germans in late 1942, though the Vichy state remained in existence.) These courts denied the individuals dragged before them, some of whom were Jewish, the normal rights granted to criminal suspects in French tribunals. Chapter 10 lays a considerable amount of the blame for the French legal establishment's participation in the mistreatment of the Jews on a particular "hermeneutic", i.e. form of reasoning. This "hermeneutic" allows an open-ended analysis of general principles but favors a narrow interpretation of specific rules. As applied in wartime France, according to Weisberg, it led jurists and lawyers to read through a blurred lens the basic French constitutional doctrines of equality of all citizens and due process. At the same time, it encouraged them to dive into a detailed, technical interpretation of the Vichy antisemitic acts, a plunge after which they as often as not retrieved a result adverse to the interests of the helpless people against whom the legislation was directed. He contends, further, that this "hermeneutic" was a Roman Catholic mode of interpreting religious and other doctrines.

For reasons noted earlier, Weisberg's book is "must" reading for anyone interested in studying fascism, ethnic or religious discrimination, French politics generally or the Vichy era in particular. It can be assigned with profit in courses on the Holocaust, European politics, modern European history, and comparative human rights. Moreover, I have no doubt about the validity of his thesis, generally accepted now by students of Vichy, that its Jew-baiting ordinances were enacted by the Petain regime eagerly, as opposed to reluctantly under German pressure. Since the last decades of the nineteenth century, antisemitism had been a potent force in French political life -- witness the strength of the opposition at the start of the twentieth century to the reversal of the wrongful treason conviction of the Jewish army captain Alfred Dreyfus. And some of Vichy's politicians (e.g., Xavier Vallat, first head of the CGQJ) and political theorists (e.g., Charles Maurras) were professional antisemites. Weisberg is also right on target in contending that French lawyers, law professors and judges accepted the antisemitic legislation as a given. When I was doing research on Vichy law in connection with a book I was writing, I was stunned to see that the commentaries on this legislation by leading figures in French jurisprudence lacked any feeling of repulsion but, rather, featured the same emotionless tone that one would use in explicating a measure regulating the dissolution of business partnerships. French regular and administrative court decisions from the Vichy era are also couched in the same colorless verbiage.

However, the main reasons for the acceptance of these laws were not a Catholic "hermeneutic"; but, rather, the absence (at the time) in France of any sort of "judicial review" mechanism coupled with the strong "positivism" of its lawyers, i.e., the feeling that the command of the sovereign is valid law and must be obeyed. It is true that Weisberg devotes several pages in Chapter 10 to wrestling with the position that positivism played a major role in securing the acceptance of Vichy racism by French legal actors. However, his refutation of this argument is not convincing; and consists in little more than noting that a few anti-semitic gibes cropped up in a commentary written by two prominent "positivist" lawyers about the anti-Jewish laws.

Furthermore, Weisberg underplays the economic factors leading to the acceptance of the Vichy enactments, though he does allude to these briefly in his third chapter. France was a country hit late by the depression of the thirties. However, once the slump arrived, it refused to fade away. During the same decade, the country took in many immigrants fleeing political persecution elsewhere. A minority, albeit not an insignificant one, of these refugees were Jews escaping Poland or Germany. Some of these Jews were professionals, e.g., doctors and lawyers. It is not surprising then that in 1940, when Petain came to power, French civil servants and attorneys worried about the loss of their jobs welcomed edicts excluding Jews from certain positions and subjecting them to a numerus clausus for others.

The Catholic "hermeneutic" may have to a marginal extent enabled French lawyers and judges to harmonize discrimination with a commitment to equality; but Weisberg glosses over the fact that jurists in non-Catholic countries have effected reconciliations of this nature just as easily. It was the Protestant United States with its Declaration of Independence that subjected blacks to segregation, which necessitated statutes and holdings defining who was black and who was not. See, e.g., GONG LUM V. RICE (275 U.S. 78 (1927)), where the U.S. Supreme Court via Chief Justice and ex-President William Howard Taft declared it proper for Mississippi to classify a Chinese girl as "colored" and thus deny her admission to a high school reserved for whites. Fairness to wartime French jurists also demands that we recognize that ANY law that grants something to some people and/or takes away something from others is bound to give rise to numerous cases about whether an individual is in the favored or disfavored class. As Weisberg himself says (p. 68), "This is the kind of question that lawyers love to attack". Thus (and ironically) Israel, a country which singles out Jews FOR special benefits including the almost absolute right to obtain Israeli citizenship, is developing a jurisprudence of "who is a Jew" just as did Vichy. Racism in America and religious extremism in Israel are mentioned by Weisberg (pp. 388-90) but only tangentially.

As seen, he thinks that an organized and loud protest at the time the anti-semitic laws were promulgated might have saved Jewish lives and property. He points out that some prominent Belgian lawyers vigorously criticized a German order excluding Jews from the Belgian judiciary. Doubtlessly, French lawyers and judges SHOULD have attacked the Vichy measures as both wicked and violative of French constitutional tradition. But it is doubtful that this would have helped much in the long run. In Belgium, as Weisberg admits (p. 51), a higher percentage of Jews was deported than was the case in France: in fact his figure of 25,000 forcibly removed from Belgium is low. Likewise, it is true that Italy refused to allow Jews in Italy and in that part of France that was Italian-occupied to be shipped out; but once the Germans seized that zone plus much of Italy proper the disappearances began. In the last couple of years of the war Hitler's death machine did not worry about local public opinion or governments when it wanted bodies for its factories and crematoria. In fact, it was mainly because the Nazi SS was spread thinly there that 75% of the Jews living in France at the start of the conflict survived the nightmare.

Several more points, a couple truly minor. Weisberg translates the French word "magistrat" as "magistrate". To an American, "magistrate" conveys the image of a semi-literate justice of the peace imposing fines on all those who go through his/her town at more than 10 mph: the French "magistrats" were judges well-trained in the law. The French have several types of lawyers, e.g., "avocats", "notaires", "avoues". It would have been helpful if he had explained the differences between these categories. Third, the book makes it clear that on the whole the CGQJ's memoranda and decisions were less favorable to the Jews than were those of the ordinary and the administrative courts. But the CGQJ was an ADMINISTRATIVE AGENCY, not a court. Thus its failings cannot be ascribed (as Weisberg does by implication) to the French LEGAL system. But despite my few criticisms, I must repeat that his is a superb book.