The Example of Vichy

Yeshiva University, Cardozo School of Law

1991

Legal Rhetoric under Stress: The Example of Vichy

Richard H. Weisberg

Benjamin N. Cardozo School of Law, [email protected]

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Recommended Citation

Richard H. Weisberg, Legal Rhetoric under Stress: The Example of Vichy, 12 Cardozo Law Review 1371 (1991).

Available at: https://larc.cardozo.yu.edu/faculty-articles/192

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LEGAL RHETORIC UNDER STRESS:
THE EXAMPLE OF VICHY

Richard Weꢀbeꢁ*

INTRODUCTION

Most of us have a tendency to think of the European disaster of
1933-45 in terms of physical violence of the worst, previously unimaginable ꢀnd. We have, in our mind's eye, masses of bodiꢁꢂ We think of the·depersonalization of victimized groups, of the refusal to sꢃ certain people as real, specific individuals, and of the resulting

• Profꢀsor of Law, ꢁnjamin N. Cardozo Schꢂl of Law. Beginnꢆng ꢆn 1982ꢊ I have made ꢃrꢄꢅꢆc trips to Fraꢔce to ꢇceꢈtaꢆn somethꢆng of the rꢉlꢆty of that legal communꢆty durꢆng the War years. I have sꢆncꢫ amassedꢊ there and at Yad Vashem ꢆn Jerusalemꢊ some 2ꢊꢋ dꢌumentsꢊ and ꢲ have ꢆntervꢆewꢍ a score of lawyers and ꢎunctꢆonarꢆꢀ who lꢆvꢍ the ꢃriꢅ as adults, some flourishꢆng, others chasꢍ fꢈom their proꢏꢀ- sꢄon and ꢆn hidꢆng.
Most researchers ꢆnto Vꢆchy hꢆstory wꢆll concur wꢆth me as to the ꢆnvaluabilꢆty of the dꢌumentary ꢐꢑices ofthe Cꢫntre de Dꢌumentatꢆon Juꢆve Contemꢒraꢆne ꢆn Parꢆs (CDJC). The CDJCꢊ since the waꢧ itself when its founders had alrꢫady couragꢫously ꢓguꢔ to dꢌument the perꢄꢅꢕ has ꢖn gracꢆously rꢗeptꢆve to rꢀearchers. The gates at other dꢌumentary cꢫn- teꢧs, such as the Archꢆvꢀ Natꢆonalꢀ (AN) have swung a bꢆt wꢆder ꢆn the past few yearsꢊ thꢫir rꢆch ꢘnd ofmaterials gradually seeꢆng the lꢆght of day. Other collꢗtꢆons ꢈemaꢆnꢊ sadlyꢊ closꢍ oﬀ.

Meanwhꢄle, lawyers and functꢆonarꢆes wꢆth memorꢆꢀ of the Vꢆchy yꢉrs have ꢙome more responsꢆve recently. Ifꢊ ꢆn ꢜ982 and 1983, I was unꢆversally greeted wꢆth the twoꢚld

answer:

"Wellꢕ we were all ꢆn the Rꢀꢆstancꢛat least aﬅer ꢜ9ꢝꢞ and "Are you sureꢊ young

man, ꢯhaꢬ you want to puꢟue thꢆs resꢉrch?ꢞ-! now am granted lengthy ꢆnteꢑꢆews ꢆn whꢆch ꢆnꢚrmatꢆon ofa more substantꢆve nature emerges. Some ofthese ꢆndꢆvꢆduals have helꢠ wꢆth the dꢌumentary work. For example, Jean Baꢈthelemyꢊ a practꢆcing Parꢆsꢆan lawyeꢈ, ꢡd ꢯhe ꢢandson of one of the Vꢆchy Justicꢫ Mꢆnꢆstersꢊ grantꢍ me a two-hour ꢆnterview and then allowꢍ me to sꢣ almost all of hꢆs grandfather's pꢈꢆvate paꢃrꢤ. Whꢆle some of thꢀe are avaꢆlable at the AN, photꢌopyꢆng ꢆs not peꢥꢆttꢍ theꢈeꢊ and he gracꢆously gꢈanted me photo- copyꢄng pꢦvꢆleges. Furthermore, whꢆle Jean Barthelemy has recently publꢆꢤhꢍ an ꢆmꢒꢧtant ꢨꢩ of memoꢆꢟ by hꢆs gꢈandꢪther, annotatꢍ wꢆth very helpful notꢀ, he allowed me to sꢣ a vaꢦety of dꢌumꢫnꢬs not ꢆncluded there.

I would lꢆke to thank the aꢈchꢆvꢆsts at the ꢚllowꢄng research centers: at Yad Vashem ꢆn
Jeꢧuꢭlem, Cynthꢆa Haﬅ; at the CDJC ꢆn Paꢧisꢊ Monsꢆeur Jacobson; at the AN ꢆn Paꢈisꢊ Mme. ꢮnazzꢆ. For theꢆꢈ generous supꢒrꢯ of my projectꢊ ꢲ thanꢩ Yꢀhꢆva Unꢆversꢆty; the American Councꢆl of Leaꢰed Sꢌꢆetꢆꢀ; and the ꢱn ꢲnteꢰatꢆonal Centeꢈ ꢚꢈ the Study of Antꢆꢴ Semꢆtꢆsm at the Hebrew Unꢆversꢆty ꢆn Jerusalem. Fꢆnallyꢊ For theꢆr help ꢆn gaꢆnꢆng access to vaꢈious Paꢧisꢆan archꢆvꢀꢊ I express my gratꢆtude to Laurence Craigꢊ Eꢧic Friꢫdmanꢊ and Seꢈge Klarsꢳld.

Where I have usꢍ archꢆval documentsꢊ ꢲ have noted theꢆꢈ lꢌatꢆons ꢚllowed by theꢆr partꢆcular ꢆdentꢆfyꢆng marks. Also, ꢆn a numbeꢈ of ꢆnstancesꢊ ꢲ have ꢆncluded moꢈe ꢆnꢚꢥaꢴ tꢆon than called ꢚr by conventꢆonal law ꢈevꢆew cꢆtatꢆon ꢚrms (e.g. orꢆꢵnal date of publꢆcatꢆonꢊ publisheꢈꢊ etc.). Translatꢆons of documents are my own.

1371

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ꢀol. 12:1371

situational discourse-typiﬁed by the phrase "interpretive commu- nityꢋ2-bends and breaks in the wake of Vichy France's example. By answering Richard Posner's critique of my earlier use of Vichy law in

3

The Failure ofthe Word, I ﬁrst show that many of Posner's norma-

tive assumptions aꢀut proꢁssional rhetoric and ꢂhavior in ꢃct un- wittingly demonstrate the ꢄrce of the second corollary-that interpretive communities need more than a merely situational sense of things. And by engaging the somewhat related discourse of Stanley
(who has not as yet addressed the implications of his theory ꢄr
Fish ꢅriods of holꢆaustic professional conduct), I assert that lawyers need recourse to textual standards of conduct and cannot rely on the practices of their profession alone to avoid future catastrophes. Here I willingly concede the diﬃculty of establishing norms apart ꢇom the interpretive practices surrounding them;⁴but my point, emꢀdiꢈ in the third corollary, is that the lesson of Vichy demands of our genera- tion a theoretical posture in search of such norms. Hence I argue that the prevalent "postꢉmodeꢊistꢋ hermeneutics, itself in radical disarray ꢄr reasons connected to my subjꢌt,⁵dirꢌtly risks prꢍucing mꢍes

2 See. e.g.• s. FISH,Is THERE A TEXꢣ IN THIS CLASS?: THE AUꢣHORIꢣY OF INꢣERPRE-
ꢣIVE COMMUNIꢣIES (1980).
Fiꢁh maintainꢁ that every ꢀrꢁon ꢁꢀakꢁ "ꢂom within a ꢃt of interꢄtꢁ and conceꢅꢁꢆ and it iꢁ "in relation to thꢇ interꢄtꢁ and conceꢅꢁꢆ that a ꢀꢈn'ꢁ wordꢁ are underꢁtꢉꢊ If communication or underꢁtanding ꢋcurꢁ,it will not ꢌ ꢍauꢁe the two ꢎple ꢁꢀaking "ꢁhare a language,in the ꢁenꢁe of knowing the meaningꢁ of individual wordꢁ and the rulꢄ ꢏr combin- ing them,but ꢍauꢃ a way of thinking,a ꢏꢐ of life,ꢁharꢄ [them] and impliꢑtꢄ [them] in a world of already-in-place objꢒtꢁ,puꢓ,goalꢁ,prꢔurꢄ,valuꢄ,and ꢕ on; and it iꢁ to the ꢖeaturꢄ of that world that any wordꢁ [they] utter will ꢌ heard aꢁ nꢗrily referringꢺꢆ Id. at 303ꢘꢙꢊ

Fiꢁh inꢁiꢁtꢁ that "communication ꢋcuꢚ only within ꢁuch a ꢁyꢁtem (or context,or ꢁitua- tion,or interpretive community) and that the underꢁtanding achievꢛ by two or more ꢀrꢕnꢁ iꢁ ꢁꢜiꢝꢞc to that ꢁyꢁtem and determinate only within itꢁ conꢟnꢄꢠꢆ Id. at 3ꢙ. ꢀe aꢁ infꢂ

text accompanying note 96 (ꢁummary of the Fiꢁh - Fiꢡ debateꢺ)
3 R. WEISBERG,THE FAILURE OF ꢣHE WORD: THE ꢢROꢣAGONIꢤ AS ꢥAꢦER IN MOD-
ERN FIꢧꢨON (1984)ꢠ

4

See Fiꢁꢁ,Objectiviꢃ and Interpretation, 34 ꢲꢣANꢊ ꢥꢺ REVꢺ 739 (1982); Fiꢁh,Fish v. ꢄꢅsꢆ
36 ꢲꢣANꢺ ꢥꢺ REVꢠ 1325 (1984).

5

Thiꢁ ꢩhꢪl of thought,oﬅen laꢌllꢛ "dꢒonꢁtructioniꢁt,ꢫ haꢁ ꢬn diꢩomꢭbulatꢛ by revelationꢁ aꢭut the wartime activitiꢄ in ꢮlgium of one of itꢁ outꢁtanding ꢟgurꢄ,literary critic ꢢaul de Manꢺ De Man iꢁ ꢁtrongly identiꢟꢛ with thiꢁ ꢩhꢪl,and hiꢁ writingꢁ highly inﬂuential within it. No lꢯ a ꢟgure than Jacquꢄ Derrida ꢁaid,in eulogy: "Aꢁ we know already but aꢁ we ꢁhall alꢁo come to realize more and more,he tranꢁꢏꢐꢛ the ꢟeld of literary thꢰry,revitalizing all the channelꢁ that irrigate it ꢭth inꢁide and outꢁide the univerꢁity,in the ꢱnitꢛ ꢲtatꢄ and ꢳuroꢀꢊꢴ See ꢥehman,The Fall ofPaul de Manꢆ New York Foꢵard,Jan.

11,1991,at 11,colꢺ l.
In 1987,ꢏur yearꢁ aﬅer de Man'ꢁ death,detailꢁ ꢁurꢶacꢛ aꢭut hiꢁ wartime activitiꢄꢊ He had written ꢷcially collaꢭrationiꢁt piꢸ ꢏr the pro-Nazi newꢁpaꢀr Le Soir. Thiꢁ revela-

tion tarrꢛ de Man,hiꢁ later critical workꢁ,and by aꢹiation the dꢒonꢁtructioniꢁt ꢩhꢪlꢺ

1991]

1377 and oﬃcials.11 The 2 June statute ꢀgins, quite logicallyꢈ with a deﬁ- nition of the word "Jew":

1. A Jew is: He or she, of whatever faith, who is an issue of at least three ꢀandparents ofthe Jewish race, or of simply two ifhis/ her spouse is an issue herself/himself of two grandparents of the Jewish race.
A grandparent having ꢁlonged to the Jewish religion is con- sidered to ꢁ of the Jewish race;
2

.

He or she who ꢁlongs to the Jewish religion, or who ꢁlonged to it on June 25, 19ꢂ, and who is the issue oftwo grandparents of the Jewish race

.

Non-aﬃliation with the Jewish religion is establishꢃ by proof of ꢁlonging to one of the other faiths recognized by the State ꢁꢄre the law of 9 Decemꢁr 1905. The disavowal or annulment of rꢅognition of a child consid- erꢃ to ꢁ Jewish is without eꢆꢅt as regards the precꢃing sꢅtionsꢇ [There ꢄllows the prohibitions ꢈr such ꢉple on property ownership and some employment; sanctions-including im- prisonment-are then dꢅlared ꢄr engaging in proscribed actiꢊitiꢋꢌ]¹²

When I read the statute ꢁr the first timeꢈ I askꢂ myself and others these questions: was this written by the Frenchꢈ with their long history of at least theoretical and constitutional equality beꢁre the law and ꢃeꢄdom of religꢅonꢆr was this imposed by the German conqueror? Was this degree of precision and legalistic verbiage really at work in the arrests of Jews on French soil that eventually led to large-scale deportations? Did not the German occupier (rather than the French) simply round up masses of indistinguishable people who lived in Jewish neighꢇrhoodsꢈ herding them into trucks or busesꢈ then onto trains to the death camps? Was not depersonalizationꢈ rather than spꢉific definitionꢈ thꢄ method of the terrorizersꢈ as Hannah Arendt seemed to argue?¹³Were Jews even in Vichy itselꢊ- the so-called non-occupied zone administered exclusively by the Frenchꢋefined and victimized by this law? And did the 2 Junꢄ, 1941 statute become the linchpin ꢁr decisions, taken by courts beꢁre whom lꢌed counsel would argueꢈ that would then decide the ꢍte of thousands of individuals in both zones?

1

Lꢀ JUIFS Sous ꢁ'ꢂCUPATI0N, supra nꢆte 10, at 185-92 (giving a full liꢎt ꢆꢍ thꢃe lawꢎ).

12

Lꢆi dꢌ 2jꢌin ꢇ94ꢇ remplaꢄant la Jꢆi dꢌ 3 ꢅtꢆbre ꢇ9ꢈ ꢉrꢊant ꢎtatꢌꢊ lꢃꢋꢌiꢍꢎ, J.O. (Jꢌne
14, 1941), D.ꢐ.L. at 3ꢏ, reprinted in LES JUꢕFS Sous L'OcCUPATꢕON, supra nꢆte ꢇ0, at 49;

see alꢀ ꢐpꢑndix ꢆne..

13 H. ꢐRENDT, ꢒHE ORIGꢕNS OF ꢒꢓAꢔꢕꢖARꢕANꢕSM 295-96 (ꢇ951; 1973).

1991]

1387

of non-adherence to the Jewish race.... If the CGQJ should refuse to de!iver such a certificate, that person can appeal to the Conseil

33

d'Etat."
The "Certiﬁcat de non-appartenance a la race juive" referrꢀ to here was the passꢁrt to relief from the life-threatening strictures of the racial laws. For hundrꢀs of cases similar to the ones we have noted, the "inside," "delicate" debate on the meaning of the 2 June statute dꢂided whether the individual would receive such a certiﬁ-