|Studies in Antisemitism
Chairman, Vidal Sassoon International Center for the Study of Antisemitism
The Hebrew University of Jerusalem
Studies in Antisemitism brings together in one series major worldwide research on this complex phenomenon from which the student and decision-maker as well as the general public may learn. The studies cover antisemitism, ancient and modern, from a broad range of perspectives: historical, religious, political, cultural, social, psychological and economic.
Ronald Modras: The Catholic Church and Antisemitism, Poland, 1933-1939
William Korey: Russian Antisemitism, Pamyat, and the Demonology of Zionism
Richard H. Weisberg: Vichy Law and the Holocaust in France
ISSN 1023 6163
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British Library Cataloguing in Publication Data
Weisberg, Richard H. 1944-
Vichy Law and the Holocaust in France. - (Studies in Antisemitism ; v. 3)
ISBN 3-7186-5892-5 COVER
Jews © BHVP/Keystone/SYGMA
EDITING AND COMPOSITION
Introduction: On the Continuing Myth
of Vichy 1
A. Morality and Law: the Justification for Riom 112. The Basic Scheme of Ostracism 37
A. The Vichy Statute of 3 October 1940 373. The Special Treatment of Jewish Legal Professionals 821. Nazi Indifference; Vichy Innovation 37B. The Vichy Statute of 4 October, 1940 56
B. Subsequent Arrests of Legal Professionals 95
C. Vichy Policy towards Jews Providing Legal Services 100
B. A Racist Constitution? 127
C. An Authoritarian France 139
D. Barthélemy and the Régime's Special Legislation 146
E. The Final Days 157
B. Who Has Jurisdiction? 178
C. The Conseil d'État's Reorganization for Exclusion 190
D. The Post-Liberation Fate of the Magistrates 193
B. Are Mosaic Georgians Jewish? Are Sepharadim Christian? Franco-Nazi Disputes about Ethnic Groupings and the Religious Laws 214
C. Mixed Heritage and Mixed Marriage as an Element in Ultimate Religious Persecution 228
D. Law and Pillage: Keeping Pace (at a Minimum) with the Occupiers 235
A. Landlord-Tenant Relations Under the Exclusionary Roof 2418. The Professional Lives of Private Lawyers 293
b. Ostracism: The Numerus Clausus for Jewish Lawyers 300
3. Charpentier, the Paris Bar, and Non-Quota Issues Relating to Jewish Lawyers 313
b. Lawyers in Drancy 315
1. Advocacy in the Face of Deportation
b. Related Work of Notaries 335
c. The Files of Maurice Garçon 338
(2) Early Cases Involving the New Legislation 341
(3) Researching Questions of Religious De 344
(4) 1941-42: Rand Less 349
(5) Towards the Liberation and Beyond 3529. Reforming the Courts, Reforming the Law: Denationalization, Special Sections, et al. 355
B. Franco-French Legal Reform Projects 370
2. The Sections Speciales 376
Responses to Them Dictated Legal Outcomes 390
2. Nazi "Authoritarian Racism" With a Difference 399
2. The Dominant Strategy: Depicting the Jew as Legalistic Other 406
b. Explaining the Pro-Jewish Outcomes 413
2. Two Catholic Lawyers: Léon Bérard and Cardinal Gerlier 421
3. Blurred Vision, Distorted Texts 426
Constitutional Acts Promulgated by Vichy 437
Statutes, Ordinances, and Decrees 437
ALL Alliance israélite
AN Archives National Paris: Commissariat Général aux Questions Juives (CGQJ) et Service de Restitution des Biens Spoliés, AJ38: “Inventaire,” and files 7, 14, 58, 61, 67, 69, 70, 80, 99, 100, 106, 115, 116, 118, 120, 127, 148, 331, 592-601, 801, 1020, 1075, 1076-80. Régime de Vichy (1940+1944), BB30: files 1708-1718 Seconde Guerre Mondiale, Comité d'histoire de la Deuxième Guerre Mondiale (1951+1980), 72
AJ: Joseph Barthélemy, ministre de la Justice, 1940-43: 411, 412, 413 Fontainebleau: Archives Personnelles et Familiales, Papiers Maurice Garçon, 304
AP Bar Association of the City of Paris: Memorandum, “On the Attitude of attorneys inscribed at the Court of Appeals of Paris Concerning the Authorities of the French State from 1940-44,” Bar Association archivist, Palais de Justice
CDJC Centre de Documentation juive contemporaine, Paris
YV Yad Vashem, Jerusalem:
file 0/9; IV-VI (Documents of the CDJC); 98-d; Leo Israelowicz file; Klarsfeld
notebook; Kurt Schendel file
Nearly twenty years ago, while researching Vichy France and the Jews, Robert Paxton and I were struck by the degree to which the murders of Jews from France during 1942+44 were facilitated by two years of aggressive persecution of the Jewish minority, initiated and implemented by the collaborationist régime at Vichy. That persecution stigmatized the Jews in French society, stripped them of their property and livelihood, turned them into fugitives, and, we argued, facilitated the Nazis' deportation of some 75,000 of them to death camps in the east. Many factors contributed to the isolation and victimization of the Jews. But among them, we noted, was a veritable cascade of French laws regulating their situation specifically,no fewer than 143 laws and actes réglementaires generated by the Vichy government. Remarkable as these laws were, so also was the rigor with which they were enforced by the French courts. Even when taking account of local variation, their severity in dealing with Jews seemed outstanding. We noted, for example, that over 650 Jews were convicted for having violated anti-Jewish laws between June 1941 and the middle of 1944, with the overwhelming majority of these being in the period extending through the massive deportations of 1942. Taking the lead from the Conseil d'État, at the very pinnacle of the French legal system, lower courts doggedly worked away at enforcing the anti-Jewish laws,almost until the very end,in what may seem to us a stunning habituation to a sordid routine. In addition, an army of legal practitioners looked up the laws, furnished opinion, filled out forms, and otherwise had untroubled recourse to the legal machinery of Vichy's antisemitic enterprise.
We also thought it noteworthy that the anti-Jewish laws slipped into the canon of legal disputation. Working energetically within the system, learned jurists published their opinions on technical and interpretive issues concerning the instruments of persecution. Academics did their part, lending the name of distinguished institutions to their writings on anti-Jewish laws. Careers were enhanced by learned publications on these themes. In reading this material, one should not forget that when it was being written and when some of it was read Jews were being cast into destitution, torn loose from their families, thrown into camps and in some cased deported to their deaths. Elle est pourtant la loi. Obéissance lui est due (The law is the law. It must be obeyed), one high official recalled having told head of state Philippe Pétain about the Statut des Juifs,a claim that may be taken as emblematic of the entire process.
Having reported the importance of the legal framework,prompted in part, I should add, by the urging of our friend Roger Errera of the Conseil d'État,Paxton and I went no further. Particularly in retrospect, I can see, we left vital questions unexplored. And that is why I take particular pleasure in introducing this excellent volume. For Richard Weisberg's Vichy Law and the Holocaust in France not only examines these questions, it provides answers informed by the author's extraordinary research and wide learning. Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo School of Law of Yeshiva University, Weisberg brings to the task his formidable legal expertise, and also a literary sensibility attentive to the subtle interrelationship between Vichy's legal discourse and what he calls its “interpretive community.”
Weisberg's starting point is that law was critical to the fate of Jews in France: “life on,and death from,French soil remained for victim and oppressor alike matters of law, negotiated by ordinary people using the tools of their prosaic craft.” These “ordinary people,” the legal professionals, are the focus of this book. Examining the work of lawyers and judges, policy makers and administrators, prosecutors and defenders, reporters and academics, the author shows how legalized persecution, what was know at Vichy as antisémitisme d'état,actually worked. The overwhelming impression is that it functioned with remarkably little friction. In both the Occupied and the Unoccupied Zones, anti-Jewish laws were energetically enforced,sometimes even more zealously so than the politically-minded Germans preferred. Notably, this legal community operated autonomously, outside the framework of government control and free of coercion or government regulation. Which is to say: the legal practitioners had choices. Yet in contrast with their colleagues in Belgium or in Italy, they displayed their “pervasive willingness to accept and work with the language of racial exclusion,” a near-universal accomodation to the universe of Vichy's antisemitic legislation. Which is to say: they knowingly did what they did. Notwithstanding occasional departures from the general rule, including some instances in which lawyers, courts, or tribunals assisted individual Jews, the system maintained an exclusionary discourse that was pervasive in the legal profession,a “discourse that all too often screens lawyers from the corrupt atmosphere lurking above the surface of their words,” Weisberg tells us.
What accounts for pervasiveness of this particular “exclusionary discourse” in the wartime French legal system? Why did Vichy lawyers contemplate no other option? Venturing an interpretation that has important ramifications for an understanding of French culture, Weisberg identifies an approach toward Jews which he terms “dessicated Cartesianism”,“a uniquely French desire to see the elaborate interpretation of the religious laws through to every logical c.” Deriving ultimately, he suggests, from a particular French Catholic reading of the place of law in Jewish history, this view contemplated Jews as being unalterably different from Frenchmen. So widespread was this perception, the author argues, that even Léon Blum, the former conseilleur d'état who seems to us to be French to his fingertips, could be so widely seen as an incorrigible Talmudist,alien, strange, and vaguely repulsive; someone, said one of his accusers, who “didn't even think French.”
Opening a new theme for research and debate, Weisberg finishes his book with an explanation to the riddle of French exclusionary legal rhetoric that posits a particular French Catholic hermeneutic on the subject of Jews and the law. This solution will have to be tested and refined in the years to come, but however interpreters decide, they will undoubtedly refer to this important book as a major landmark, and one whose importance extends far beyond the French context. For Vichy Law and the Holocaust in France shows not only how cruel persecution was once cloaked in a legalistic process, but how easily this can happen, how the instruments of a seemingly liberal legal system can be adapted to this end, and how readily quite ordinary practitioners can be drawn into the process. This ought to give pause to those,like most of us,who do not regularly question just what it is we do with the rules of the game we inherit. Having learned much from this book, I commend it to readers as first-rate legal history, as a distinguished contribution to the understanding of the Holocaust in France, and also as a cautionary tale.
This work sets forth data about the role of law and lawyers during the Holocaust in France, a period between 1940 and 1944 in which some 75,000 Jews were sent from French soil to death camps “in the East.” The vast majority of these deportations occurred under cover of French law, for as early as September and October of 1940, an independent French government, with its seat of operations in Vichy, had promulgated a widespread series of laws, regulations, and decrees about the Jews. These proved sufficiently thorough in their application and effect that the Germans largely imported them for use in the occupied zone of France as well.
This is a work of empirical research, involving the identifying and amassing of over 2,500 primary documents relating to Vichy law, conversations with countless French witnesses from the period, and formal interviews with twenty-five or so lawyers or legal functionaries whose careers spanned the Vichy years. The data spans all areas of legal activity, and all participants in the legal arena. Documents made available to the researcher over the twelve-year period of this project (1982+94) illuminate the work of magistrates, administrative agencies and courts, government lawyers and ministries (particularly the Ministry of Justice), private legal practitioners and their professional associations, legal academicians and their books and journals.
Legal activity during the full four years of Vichy was pervasive. Courts functioned much as they had always functioned, although bound by an unusual oath to Vichy's leader, Marshal Pétain; administrative actors fought for jurisdictional space and increasing power under the Marshal's authoritarian brand of leadership; private legal practitioners,avocats, avoués, notaires,with greater autonomy from their government, took up the new materials of racial, religious and ethnic ostracism and worked with them in volume and without substantial protest. Legal academicians wrote doctoral theses and had them published on the subject of the anti-Jewish laws, made their reputations as young law professors by discussing “neutrally” the stuff of exclusion, tried to explain how French constitutional norms could co-exist with laws designed to persecute people ex post facto and because of immutable traits or private beliefs.
The data reveals that all this French activity occurred largely without German Diktat. The French did it mostly on their own, with a zestful logical thoroughness that often seems to defy easy explanations such as endemic antisemitism. Too many people were involved, on all sides of the political and social spectrum, to ascribe the totality of the legal record under Vichy to virulent forms of anti-Jewish feeling. And the data reveals more than a few doctrinal areas that developed over the four year period to protect certain categories of Jews. The system was working on its own,certainly aware of the presence of the Germans,but within its own characteristic self-conception.
While many legal actors may well have assisted individual Jews (or, more likely, people suspected of being Jews but who could argue a legal loophole and escape that beleaguered status), their pervasive acceptance of the laws made possible the exclusion of a thousand Jews for every one that was saved. Judicial doctrine or individual advocacy often worked to expand the scope of the laws beyond what either their literal sense, or even the German precedents, demanded. More than once, the Nazis formally asked the French to limit the pace of definitional or evidentiary decisions that had the effect of encompassing categories of individuals that German law itself had never considered Jewish. All of this occurred because of the “rich” debate that involved French legal actors in increasingly thick volumes of prose related to the “Jewish question.”
Under French law, billions of francs of Jewish property were pillaged. The process was rational, bureaucratic, and “lawful.” Many Jews consulted with lawyers and found ways to protect their property. The courts and agencies heard many hundreds of cases dealing with the new figure of the “administrateur provisoire,” the Aryan “trustee” who was charged with dealing with any property not so protected. The politics of inevitable German defeat did not substantially deflate the rhetoric of religious definition, economic aryanization, denationalization, arrest, and deportation.
This study seeks eventual norms of understanding about French legal activity under Vichy. Adopting a kind of hourglass structure, the work expands from the first chapter, which identifies Léon Blum as the paradigmatic victim of Vichy law during the political trial at Riom, to an intensely substantive second chapter on the religious laws themselves and then a third chapter on the manner in which Vichy law treated Jewish lawyers. Chapter 4 again bends inward as Justice Minister Joseph Barthélemy's blend of Catholic constitutionalism comes to center stage (having been a key secondary player at Riom); then the work expands outward again in a fifth chapter devoted to the personal power struggles between the magistrates and the administrative agencies and courts, and a sixth dealing with the manner in which Vichy exceeded Nazi precedents. Chapter 7 deals in detail with property law, including landlord-tenant (where suffering Jews almost always won judicial support in their search for rent reductions) as well as aryanizations, corporate housecleaning, estate planning, spousal gifts, intergenerational transfers, and community property (in all of which domains Jews did not fare as well). Chapter 8 broadens the hourglass further, with dozens of descriptions of private lawyers, and all manner of situations for which the considerable talent of individual French practitioners was brought to bear on one side or the other of the exclusionary laws. Chapter 9 speaks of legal reform projects, particularly those in the fateful months of late 1943, when the Germans awaited Vichy laws to abide their need for more Jewish bodies. Chapter 10 bends inward, as the study attempts to understand the special hermeneutics of French law, an anti-Talmudism that combined one aspect of traditional xenophobia with the sense that the Jew's choice of a peculiar and “non-French” approach to law somehow made reasonable and even necessary special laws dealing with the Jew. Catholic hermeneutics and theology, centering on Vichy ambassador Léon Bér's consoling letter to Pétain about Vatican acceptance of French exclusionary legislation, play an interweaving role, as secular law counts on the dominant religion to rationalize ostracism.
It is because of the latter analysis that the study mostly eschews use of the word “racial” to describe the laws. Vichy law surely contained racial components, ranging from the enormously contested definition of grandparental heritage to the exalted language of constitutionalism itself; but in the main, the laws against the Jews in France were the product of an ingrained way of seeing and understanding the Talmudic outsider. This was a person who not only had “too little French soil in his sandals” (to quote a legal treatise of 1943) but whose religion,far more than moral laxity or depravity, the slogans of less typical antisemites,set him legitimately apart from the universe of protected Frenchmen, who still enjoyed the great constitutional gifts of equality and due process, never fully repealed by Vichy. To this extent, the adjectives “religious,” “exclusionary,” or even “ethnic” better modify the nouns “legislation” or “laws” in the Vichy context.
Individuals also play a great role in this study. Woven into various substantive chapters are pervasive legal actors such as Justice Minister Barthélemy, Paris Bar Association head Jacques Charpentier, Constitutional Law Professor Jacques Maury, practicing lawyer Joseph Haennig, Riom defense counsel and active private practitioner Maurice Garçon, as well as men trained in law such as Pierre Laval, Raphäel Alibert (the first Minister of Justice), Philippe Serre,who courageously joined a mere handful of other parliamentarians to vote against granting full powers to Pétain, and whom I interviewed about Vichy in 1988,and the victimized lawyers who range from the masterful and distinguished Pierre Masse to the communist Hajje (shot as a hostage) to the poignant Jacques Franck, so demoralized to see what his own country was doing to law that he threw himself from a window.
Hundreds of other individuals play their role here. Vichy is not an abstraction. It was a fully functioning, largely “Franco-French” phenomenon. It is everything that needs examining, fifty years after the Liberation, about France; and it is much that is ennobling and inspiring as well. No reader should claim for himself or herself a path of action unencumbered by the complex choices these largely unexceptionable men and women made in the face of laws passed by their own government. Yet none should assume either that the mere promulgation of the laws dictated any particular outcome.
People created whatever Vichy's record eventually became. They used the tools of legal reasoning. They managed to avoid protest on high levels of legal generalization that were surely available to them, particularly at the beginning, before the discourse had settled on lower levels of analysis, such as the four-year long debate about the status of mixed-heritage individuals. In Italy, a Fascist régime and ally of Hitler, similar laws went largely unenforced. In France, legal actors instead brought their considerable rhetorical, logical, and even creative abilities to bear. The Germans, never really able to expend manpower in great quantities to enforce their own version of racism on Vichy's Jews, quickly and pragmatically saw that it would be enough to “let the French do it.” How and why the French “did it” we are now about to discover.
People also have made this project possible. My thanks go to archivist Jacobson at the Centre de documentation juive contemporaine, who assisted me in 1982 in Paris when little else was available. How rich and how generous is that archival center! To Cynthia Haft, archivist of the French collection at Yad Vashem in Jerusalem, go my friendship and my gratitude. To archivist Mme. Bonazzi of the twentieth-century collection of the Archives Nationales in Paris, my enduring thanks for guiding me through the collections relevant to my topic and for unfailing support for a project that had only recently become even thinkable much less implementable without such aid. The relatives of Vichy legal actors were most generous with their time, their thoughts, their documents. I am thinking especially of Jean Barthélemy, a Parisian lawyer and grandson of the Justice Minister. He must have known that I disagreed with many of his assessments of his distinguished grandfather's Vichy years, yet he unstintingly opened his thoughts and his generous spirit to me. I am thinking of Maurice Garçon's son, a lawyer in Beaunes, who greeted me warmly and assisted me to gain access to his father's extensive collection at Fontainebleau. My thanks go to Serge Klarsfeld,a figure of unparalleled moral stature in shedding light upon Vichy for working with me to gain access (as no earlier researcher had) to a part of the files of the Bar Association of the City of Paris. To the archivist there, M. Azanam, go my thanks for understanding a three-year long attempt to open the door just a bit to the multifaceted collection that exists at the Palais de Justice. To Laurence Craig, an American lawyer in Paris, I offer thanks for selflessly assisting with that same, finally fruitful, process.
I cannot express sufficiently my gratitude to Eric Freedman, my friend, confidant and co-worker, whose importance to this project ranged from assisting me on his day off, to sort out the 11,000 individual files of Maurice Garçon at Fontainebleau, to discussing the entire range of issues provoked by this study over a twelve-year period. To Eric's spouse, Claire Estryn, a superb French jurist, go further thanks for assisting me with numerous technical issues of French administrative law. I must also mention French scholars Annette Wieviorka, André Kaspi, Dominique Gros, and Pierre Birnbaum, who shared their thoughts with me and opened many doors. My fine friend and colleague, Claude Klein, lent me inspiration, advice, and the further friendship of Liliane Abendsour; both encouraged my efforts at every turn. Geoffrey Hartman, with whom I have been fruitfully discussing for thirty years what has become this book's developing thesis, offered his consistent support and constructive criticism. My brother, Prof. David Weisberg, has also inspired and taught me along many of this project's pathways. Finally, an inexpressible debt of thanks goes to my wife, Cheryl, and my children, who not only supported me with their humor and their love but also accompanied me both to Paris' proud sites and to the mournful monuments and documentary centers that reveal every bit as much about the French and, indeed, about ourselves. My family assisted me to live with this darkside without losing my affection for the French and for their wonderful country.
I would like to thank my Cardozo Law School colleagues, who patiently sat through several versions of my thesis and offered their comments along the way, and particularly among them I wish to acknowledge Telford Taylor and Eva Hanks.
Several institutions have underwritten this work. The American Council of Learned Societies, under the leadership of Stanley Katz, saw something at an early stage that they were willing to assist. The Vidal Sassoon International Center for the Study of Antisemitism in Jerusalem was vitally important to the continuation of this work. I was further privileged to have the extraordinary editorial assistance of Alifa Saadya, whose commitment to making this the best book it could be went far beyond the call of duty. And Yeshiva University, my law school's home institutional base in New York City, has been unstintingly generous to this project.
For her supervision of the secretarial assistance I received at Cardozo, I warmly thank Anne Kamlet. To Joel Grantz, my friend and indispensable assistant in computing my data, and in figuring out the best technical strategies for producing this book, I convey great gratitude.
And to the French. Oh, the French! Those ultimate creditors of my upbringing, my wellbeing, my love of what is stunning in art and in nature! I hope that they will be able to see what follows as a foof still admiring exchange for all they have given to me.
Walter Floersheimer Professor of Constitutional Law
Benjamin N. Cardozo School of Law, Yeshiva University
Weisberg is Floersheimer Professor of Constitutional
Law at the Benjamin N. Cardozo School of Law of Yeshiva University, New
York. Trained both in law at Columbia and in French and Comparative Literature
at Cornell, Weisberg helped to pioneer the Law and Literature movement
worldwide with his earlier three books, The Failure of the Word
(Yale, 1984), When Lawyers Write (Little, Brown; 1987), and Poethics
(Columbia, 1992). The recipient of research grants from the National Endowment
for the Humanities, the Rockefeller Foundation, and the American Council
of Learned Societies, Weisberg has published and lectured widely on Vichy,
and his work has been translated into French and Italian. Having practiced
law in Paris and in New York City, he has taught that subject at various
campuses in the United States, Canada, Israel, and Australia; and has taught
literature at the University of Chicago and at Brandeis. He is the general
editor of Cardozo Studies in Law and Literature
Copyright ©,2005 , The Hebrew University of Jerusalem. All Rights Reserved.