The Fragility of Law: Constitutional Patriotism and the Jews of Belgium, 1940-1945 (review)

In the 1980s, the fate of the Jews in Belgium during the Holocaust was extensively chronicled and analyzed in Maxime Steinberg's multi-volume work L'Étoile et le fusil. Many of the questions raised by that work were revisited in the collection Belgium and the Holocaust: Jews, Belgians, Germans, edited by Dan Michman and published in 1998. In The Fragility of Law, historian David Fraser charts new territory by delving into the behavior of the Belgian legal profession during the German occupation of 1940-1944 and immediately after. The result is a detailed examination of the Belgian legal system and its complicity in the introduction and execution of antisemitic legislation. The targets of Fraser's criticism are clear from the outset: the Secretaries-General and their lack of opposition to anti-Jewish measures that breached the terms of the Belgian constitution, and the legal elite who likewise remained silent as the Jews were marginalized and excluded from Belgian society. His analysis uses a highly moralistic framework and the message of the book is clear; namely, that the Belgian legal and judicial system failed to meet the challenges it confronted during the Nazi period. One of the author's charges is that the Secretaries-General intervened only to protect the Belgian nationals among the Jews, thereby ignoring the plight of the foreign Jews who constituted the majority. In this respect, it might have been useful to reflect on the possible continuities and discontinuities from the prewar period and the Belgian authorities' attitudes towards Jews as foreigners or as recent refugees.

As Fraser makes clear, the existing constitutional arrangements and the terms of the Hague Convention could have provided a basis for resistance to impositions by the occupier. Soon, however, "constitutional principle gave way not just to craven compromise but to pragmatic collaboration in the legal and bureaucratic processes of identification, exclusion and expropriation of Belgium's Jews" ( p. 226). While this might be seen as a moral judgment, the author admits that "any suggestion that things would have been different had the legal and constitutional resistance manifested itself consistently throughout the occupation must remain speculative" ( p. 227). In a central chapter, he examines the ways in which local bureaucracies—in this case the Brussels city government—unquestioningly followed the instructions issued by the German occupiers and adopted the terminology they used. Moreover, there is compelling evidence that these officials went beyond what was required of them; they introduced processes of their own—for example, noting in identity cards issued to Jews that the bearers had "requested . . . entry in the Register of Jews." Fraser views this as the bureaucrats' way of avoiding an active role in identifying Jews by engineering the system so that it appeared as if this had been done at the Jews' own request. Nevertheless, the same bureaucrats marked the cards held at the central index with a letter "J." As corroboration for this study of Belgian bureaucratic behavior, Fraser also charts developments in Liège, where civil servants were compiling lists of "Polish" and "Hebrew" stores in June 1940, long before the Germans began publishing decrees against the Jews. These officials later responded to every German request for information with "quick, efficient and complete answers." Like their counterparts in Brussels, officials in Liège violated the terms of the Belgian constitution "when they were dealing with 'Jews'" ( p. 163).

Fraser raises major questions about the functioning of a domestic legal system under occupation by a foreign power intent on imposing racial criteria. He concludes that there was little resistance to the adoption of Nazi terminology or to the implementation of measures that discriminated against those categorized as Jewish. Through a close reading of the available sources, he also shows how the record of bureaucratic behavior was created and then "adjusted" both during and after the occupation. The author has been assiduous in tracking down a vast range of relevant...