Myths of Nation, Law, and Agency
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00804.x |
| Published date | 01 May 2010 |
| Date | 01 May 2010 |
REVIEWARTICLE
Myths of Nation, Law, and Agency
Kristen Rundle
n
David Fraser,The Fragility of Law: Constitutional Patriotism and the Jews of
Belgium,1940^1945,Oxford: Routledge, 2008, 290 pp, hb d80.00.
In 1945,after Belgium was liberated from Nazioccupation, a leading member of the
BrusselsBar published an article that paid tributeto the fallen ofthe profession and
the heroic struggle undertaken by his colleagues during the occupation.That strug-
gle, according to the author, could rightfully be celebrated as a‘victory of law’ (9).
This assertion coheres fully with the collective narrative of Belgian life under
German occupation, according to which Belgians either actively resisted or, at
worst, passively observed the atrocities of Nazism. David Fraser’s prizewinning
new book,The Fragilityof Law:Constitutional Patriotism and theJews ofBelgium, 1940^
1945,
1
challenges these myths bypresenting a counter-narrative in which the roots
of the Holocaust in Belgium emerge as necessarily dependent on Belgian state
and legal cooperation. Without the active compliance of Belgian o⁄cials
from the highest to the lowest levels, Fraser tells us,‘the processes of identifying,
excluding and expropriating Belgium’s Jewish population would not have been
possible’ (226).
For Fraser, much of this story can be explainedby interrogating the self-under-
standings of these actors, as Belgian nationals, vis-a
'-vis the values and provisions
of the Belgian Constitution. As he puts it in the opening pages of the book, the
adherenceto national constitutional values that was at the heart ofthe resistance in
Belgium also‘carried with it the seeds of the destruction of the country’s Jewish
population’ (4), because even if sourced in German decrees, the actions through
which the persecution of the Jews was e¡ected were distinctly Belgian.
2
This storyof the fragility of declared constitutional norms in the face of exter-
nal threat and prejudice, and its apparent consequences for the fate of Belgium’s
Jews,makes for a sobering read. It is toldprimarily through a series of c ase studies
of Belgian legal and administrative practice that contradict, or at least dilute, the
o⁄cial Belgian mythologyof resistance.These case studies are made all the more
compelling for how their focus is not on‘the bad guys’ - those fascists who wel-
comed the New Order and a Belgium free of Jews - but rather on legal profes-
sionals and government o⁄cials ‘who saw themselves as Belgian patriots’ (10).
Drawing extensively upon archival materials from government agencies, the
n
LawDepartment, London School of Economics & Political Science. I am gratefulto Zoran Oklopcic
and an anonymous reviewer for their comments on earlier drafts of this essay.
1 Winner of the 2010Hart-SLSA (Socio-Legal Studies Association) Book Prize.
2 I explain the relationship between the extant Belgian constitutional order and the Hague Conven-
tion governing the German occupationbelow.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(3) 494^509
courts, and legal professional organisations, the story revealed through Fraser’s
narrative one in which constitutionally-based resistance to the Nazi anti-Jewish
decrees was highly selective, at best. Most notably, such resistance was not
expressed on behalf of or in an e¡ort to protect Jews generally, but rather was
limited to the protection of those Jews who were Belgian citizens. Non-citizen
Jews, who comprised the vast majority of Jews present in Belgium at the time of
the occupation, werebasically left to themercy of the Nazis.
3
This fact is madeall
the more disturbing when one considers that of the Jews ultimately deported
from Belgium to the death factories of Poland, 95 per cent were foreigners (37).
Moreover, when constitutionally-based resistance to the anti-Jewish decrees did
¢nd expression, it came predominantly from the voices of the Francophone legal
elites in Brussels who had been the authors of the united Belgian constitutional
project.
4
No equivalent resistance was voiced by their Flemish counterparts in
Antwerp who, indeed, made a concerted e¡ort to implement the decrees.
5
The
so-called ‘victory of law’ in the face of Nazi tyranny then falls for still deeper
scrutiny when we consider the fact that Belgian bureaucracy willingly became
the implementing arm of the anti-Jewish project, justifying its‘passive collabora-
tion’ in constitutional terms.
The valueof scholarship thatinterrogatesthe connections between law and the
Holocaust is increasingly being recognised for how it illuminates i nquiry in two
distinctive directions. On the one hand, the study of these connections adds a
dimension to our understanding of the design, dynamics and consequences of
the Nazi persecution of the Jews that has been traditionally under-emphasised
3 Of the 55,671 Jewswho ultimately came tobe registered in Belgium under the anti-Jewish decrees,
only 3,680 were Belgian citize ns,al l othersbe ing Jews who had £ed the pogroms and poverty of
eastern Europe to feed the demands of Belgian industry (14).
4 The very idea of Belgium as constitutional order, embodying and guaranteeing thefreedoms of its citi-
zens in the text of its Constitution, Fraserexplains, was the result of ‘the complex politicsof law among
the French-speaking legal elite at the time of the founding of the Belgium state in the 1830s’ (60).
5 As t he suggestion of the ‘victoryof law’ quoted at the top of this ess ayi ndicates, the Brussels legal elites
play a starring role in the story of Belgian resistance to Nazi tyranny for doing precisely what their
French counterparts i nVichy failed to do: for rallying against the anti -Jewish decrees as ‘opposed to the
principles of our Constitution and our laws’. They also emphasised the continued existence of Belgium
as a nation, the limited authority of the Germans as occupier to enact measures necessary for maintaining
ordera ndpublic l ife,and argued that it was Belgian law and only Belgian law that governedthe appoint-
ment and removal of judges and lawyers (48).Thi s stands in stark contrast to the actions of the legal
profession in Antwerp which, as Fraser tells it, readily bowed to anti-semitic and nationalist pressure
and struck all of its Jewish members from practice (50^55). As for othere lementsof th e legalprofession,
Fraser suggests that instances of constitutionally-based resistance tended to be eventual, rather than
immediate or sustained. For example, the professio n of notaries, whose authentication of documents
was critical to the process of winding up and/ort ransferring Jewish propertyi n accordancewith the Nazi
policyof Aryanisation of the economy‘simplyi nformedtheir colleagues of the content of the new rules
relating to the transfer of Jewish property and urged them tocomply therewith’. By January 1941, the
o⁄cial government of Belgium, seated in exile in London, had communicated by a ministerial decree
that all such transfers made purs uant to German demands were null a ndvoid, and yet the partic ipationo f
notaries in the Aryanisation process nonetheless continued until late 1942, when the Attorneys-General
in both Brussels and Antwerpadvised the leaders of the profession thatthese forced transfers of property
were contrary tothe Hague Convention. From that moment,the refus alof the Belgian legal profession
to participate in the Aryanisation process led to the fa ilure of the Germans to acquire large swaths of
Jewish property.The point Fraser seeks to emphas ise, however, is that thi s positive note in Belgian Holo-
caust history did not arriveu ntilt heAryanisation process has already been on foot for two years(66^69).
Kristen Rundle
495
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
(2010)73(3) 494^509
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