Source: http://www.amgot.org/kramer.htm
Accessed 12 December 1999
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.
Law & Politics Book Review web site: http://www.psci.unt.edu/lpbr/

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.
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Stuart.Stein@uwe.ac.uk
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