The Politics of Apoliticism

Political Trials in Vichy France, 1940-1942

James Herbst

• Publisher: De Gruyter Oldenbourg
• Year: 2019
• eBook ISBN: 9783110607437
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

In 1942, the dictatorial regime of occupied France held a show trial that didn't work. In a society from which democratic checks and balances had been eliminated, under a regime that made its own laws to try its opponents, the government's signature legal initiative – a court packed with sympathetic magistrates and soldiers whose investigation of the defunct republic's leaders was supposed to demonstrate the superiority of the new regime – somehow not only failed to result in a conviction, but, in spite of the fact that only government-selected journalists were allowed to attend, turned into a podium for the regime's most bitter opponents. The public relations disaster was so great that the government was ultimately forced to cancel the trial. This catastrophic would-be show trial was not forced upon the regime by Germans unfamiliar with the state of domestic opinion; rather, it was a home-grown initiative whose results disgusted not only the French, but also the occupiers.

This book offers a new explanation for the failure of the Riom Trial: that it was the result of ideas about the law that were deeply imbedded in the culture of the regime's supporters. They genuinely believed that their opponents had been playing politics with the nation's interests, whereas their own concerns were apolitical. The ultimate lesson of the Riom Trial is that the abnegation of politics can produce results almost as bad as a deliberate commitment to stamping out the beliefs of others. Today, politicians on both sides of the political spectrum denounce excessive polarization as the cause of political gridlock; but this may simply be what real democracy looks like when it seeks to express the wishes of a divided people.

1 Introduction

Treason doth never prosper, what's the reason?

For if it prosper, none dare call it treason.

‒ John Harington

In 1940, a mere twenty-two years after its admittedly ambiguous triumph in the Great War (1914 – 1918), the French Army experienced perhaps the most abrupt and total defeat ever suffered by a great power. Other great powers have been humbled in war with equal speed; Napoleon's 1809 campaign against Austria comes to mind. Another such case was France itself in 1870. France then, however, had managed to hold out for another year. In contrast, the 1940 catastrophe was unique in its combination of rapidity and thoroughness. In six weeks, France was reduced from one of Europe's two leading military powers ‒ the Soviet army, recently humiliated in Finland, was widely considered to be of doubtful quality ‒ to the status of a client state of Nazi Germany. It was the Third Reich's only fully successful campaign against a great power.

Within weeks, France had not only lost her independence but also her liberty. The collapse of French pluralism1 was as drastic as her military defeat. For much of the nineteenth century, France had been a byword for rapid changes of regime. Alfred, Lord Tennyson, had mocked them for it in his 1847 poem The Princess, only a year before France experienced yet another short-lived shift towards democracy:

But yonder, whiff! there comes a sudden heat,

The gravest citizen seems to lose his head,

The king is scared, the soldier will not fight,

The little boys begin to shoot and stab,

A kingdom topples over with a shriek

Like an old woman, and down rolls the world

In mock heroics stranger than our own;

Revolts, republics, revolutions, most

No graver than a schoolboy's barring out.

From 1875 on, however, France seemed to have settled on a durable pluralistic system. The Third Republic was prone to scandal and rapid cabinet turnover, but it seemed to be, as the former moderate monarchist Adolphe Thiers once commented, the form of government that divided the French least.2 In spite of the resurgence of political divisions in the 1930s, especially after the election of the left-wing Popular Front in 1936, most of the French continued to support parties espousing one version or another of republicanism. In 1940, however, as the Wehrmacht approached the fleeing French parliament's new headquarters in Bordeaux, an overwhelming majority voted full powers to Marshal Philippe Pétain, France’s only living marshal and a national hero due to his record in the First World War. Pétain was to draw up a new constitution, and, apart from a provision that the result would have to be ratified by the Assembly (honored, as it proved, more in the breach than the observance), nothing guaranteed that the result would be democratic. Indeed, “the Marshal,” as he is still popularly known, promptly issued a series of “constitutional acts” that swept away the Republic and replaced it with an authoritarian regime in which he reserved all power for himself. The new regime would be named after the city to which the French government had moved after Bordeaux: Vichy.

Even as the French Army continued to crumble, some political leaders still hoped to hold out in the reduit bréton (the Breton peninsula) or in France's vast North African colonies. On June 22, however, Pétain signed an armistice agreement, a day after thirty parliamentarians had boarded the Casablanca-bound Massilia in the mistaken impression that the rest of the government would follow them. The Pétain government immediately portrayed this act as one of betrayal, as a panicked flight rather than as an attempt to continue the fight. Soon after, it began to seek to give this portrayal juridical form in the shape of the prosecution for desertion of four of the Massilia deputies: Jean Zay, Pierre Mendès France, Pierre Viénot and Alex Wiltzer. They were taken into custody on 31 August 1940. A month earlier, Pétain and Vichy's Minister of Justice, Raphaël Alibert, had established a new court, the Cour Suprême (Supreme Court) at Riom, with jurisdiction over former ministers and their immediate subordinates. Pétain, granted power by the same parliament that had launched the Popular Front government in 1936, had begun the process of targeting prominent Popular Frontists for a trial at Riom, which was finally held in 1942.

The intervening eighteen months had not been encouraging for the government's judicial policy. Three of the Massilia deputies – Zay, Mendès France, and Viénot – were successfully prosecuted in the course of 1940 – 41 by a military tribunal at Clermont-Ferrand, but this was the extent of the government's success in prosecuting its precursors. The same tribunal – indeed, the same magistrate – who convicted Zay and the other deputies refused even to indict former Prime Minister Paul Reynaud and his Minister of the Interior, Georges Mandel. The Riom tribunal dragged its feet seemingly interminably, to the point that an impatient Pétain overrode the wishes of his new Minister of Justice, Joseph Barthélemy (who had replaced Alibert in February 1941), and instituted a new hand-picked Conseil de Justice Politique to pass sentence on the Riom defendants. It duly did so on October 15, 1941, but the fact that the Riom court continued to deliberate was an indication of how little credibility the Conseil's verdict possessed, even at Vichy.

Meanwhile, international events had also turned against Vichy. The regime was predicated on the assumption that the war was over and Britain would quickly capitulate or, in the famous words of Vichy's Minister of National Defense, Maxime Weygand, “have its neck twisted like a chicken’s.”3 Neither occurred. The establishment of the Cour Suprême had taken place in the wake of the British bombardment of the French fleet at Mers-el-Kébir on 3 July, 1940, and consequently at a low point in Franco-British relations; but French opinion continued to be largely favorable to a British victory.4 In June 1941, the British invasion of Syria began to remove a second component of Vichy's self-legitimation – its continued possession of France's colonies. A series of diplomatic initiatives throughout 1941 gradually brought the United States closer to participation in the war, and made the prospect of ultimate German victory, which had seemed so certain in the summer of 1940, appear to recede still further. The German invasion of the USSR in June 1941, initially highly successful, had bogged down by the autumn. By February 1942, when the Riom court finally convened, it was no longer a triumphant initiative by the victors in France's domestic quarrels so much as a desperate attempt to rescue the government's crumbling legitimacy.

It did not succeed in this goal. The Riom trial was a disaster for the Vichy government. Uniquely among show trials, it failed to result in a conviction, and the 1942 hearings were in fact so embarrassing to the regime that the trial had to be placed on what proved to be an indefinite hiatus. Tardy in its preparation, the trial was also slow in its execution: by the time it was suspended, after a month and a half of hearings, only a minute fraction of the witnesses had been called. By contrast, Philippe Pétain's own trial would take only twenty-three days (July 23 to August 15, 1945). The extraordinary spectacle of a show trial that took a year and a half to prepare and failed to accomplish any of its goals demands explanation.

This book will argue that the failure cannot be blamed on the way German demands shaped the trial, because, far from being the result of foreign pressure, Riom was fundamentally about domestic French politics. The German interest in the trial was primarily about demonstrating that France and not Germany was responsible for the war, and it was they who summarily ended the trial when it proved not to consider the question of war guilt at all. This conflict between Nazi and Vichy views of what the trial should accomplish was not a last-minute development. From the beginning, Riom had been designed to show not that France was responsible for the war, but that Vichy's structures of government were right, because the previous structures of government – in particular, the intrusion of politics (that is, debate) into the apolitical realms of administration, justice, defense, and economic policy – had led to the defeat.

This critique of the late Third Republic was not new. A wide variety of political figures, from Édouard Daladier on the left to André Tardieu on the right, had spent the interwar years trying to recast France along more technocratic lines. One group of such like-minded individuals, the Redressement Français, would indeed provide the primary inspiration for the trials. Implicit in their analysis, as in the work of many later philosophers of democracy such as Claude Lefort,5 was the idea that public policy consisted of two separate spheres: the “political” sphere, where public debate was necessary, and the “apolitical” sphere, where an elite consensus had already been reached and further debate would only undermine good government. Pushing sensitive political topics such as economic policy into the apolitical sphere of pure administration held inherent antidemocratic elements, but the interwar Redressement Français did not see its activities in that light. Rather, their irritation at the ignorant masses impinging on spheres of which they knew nothing bore a considerable resemblance to today’s Dubai Consensus on economic policy. Philosophically, it was closer to the American pragmatist tradition of C. S. Peirce and William James, with their respect for science and limitation of the sphere of legitimate doubt, than to the anti-democratic theorists of Nazi Germany. The members of the Redressement Français were merely reiterating the basic insight common to all theorists of democracy that a limitless sphere of debate vitiates that debate by forcing a constant revisiting of the fundamental postulates without which the debate itself becomes impossible. Until 1940, the French disagreed on exactly what the “apolitical sphere” might cover, but it was not undemocratic to argue that it existed. The result of the defeat of 1940, however, was to raise the stakes of this disagreement about apoliticism. Arguing, for example, that the military should be free from political interference now carried the implication that those who interfered were responsible for the defeat, and were consequently not merely wrong, but treasonous.

Riom's failure, then, was the result of Vichy’s highly ambitious effort to inculpate its precursors collectively as not only politically wrong but criminal. This in turn was the result of the very sincerity of the beliefs of Vichy's leaders that their Popular Front precursors had engaged in policies that were not deliberately intended to undermine the nation but that nonetheless led to the defeat. Vichy consequently redefined treason to include negligence – that is, bad policies – in addition to deliberate assaults on the nation's interests. Those who formed Vichy's legal policies sincerely believed that its political trials were not political at all, and, in fact, that it was the victims of these trials who were guilty of placing party politics above the commonweal. It was this sincerity that led to the extraordinarily ambitious venture that was Riom, which was intended to demonstrate to the French that their new leaders relied on objective means like the law rather than on political sloganeering.

This ambition made Riom a venture unprecedented in French history. No previous regime had ever attempted to try its precursors as a group; indeed, since Louis XVI, every successive deposed ruler had departed into exile without trial. The Fourth Republic would copy Vichy's efforts to secure a judicial condemnation of the previous regime, but prominent Vichyites like Pétain, Pierre Laval and their subordinates were tried as individuals (albeit before a court set up specifically to try all Vichy-era Ministers and State Secretaries). They were, moreover, generally accused of offenses well-established in the legal codes, even if the punishment of indignité nationale was a novel one.

Even outside France, it is difficult to find precedents that match Riom. The Bolsheviks did not feel the need to try their hated precursors Alexander Kerensky and Pavel Miliukov together (or at all); the Nazis, after one abortive experiment (the Dimitrov Trial), sought to kill rather than try their precursors. The Spanish dictator Francisco Franco's Bellón Commission,6 which sought to demonstrate the illegitimacy of the Second Spanish Republic that preceded him, and his Causa General, which tried many rank-and-file Republicans, formed the only close precedents in recent European history. Franco, however, made no attempt to hide the military nature of his rule, and the Causa General was an openly military tribunal. Moreover, much of the Republican political leadership, including Lluìs Companys, the president of Catalonia, and Manuel Azaña, the last president of the Second Republic, had already succeeded in fleeing abroad after the civil war. In its scope and ambition, therefore, the Riom trial broke new ground.

Nor was the legal theory of the Riom trial directly comparable to those of the more famous show trials that preceded it. Rather, it stood totalitarian legal theories on their heads. The Soviet show trials of the Yezhovshchina or purge era, 1936 – 8, were part of the Stalinist government's mid-1930s reversion towards more conventional norms, including what had previously been denounced as bourgeois legality. Even so, they were openly political in a way that Vichy could never have adopted.

In a curious way, however, this hyperpoliticism approached Vichy's apoliticism from the opposite side. The Stalinist effort to produce a total politics – that is, the politicization of all areas of society ‒ and the Vichyite effort to remove politics from society both ultimately stifled democratic debate. The Stalinist prosecutor Nikolai Yezhov's efforts to show that opponents were “historically” rather than factually wrong paralleled Vichy's efforts to establish a definition of treason that focused on consequences rather than intent. Both the USSR and Vichy saw the historical process as determined by abstract factors that could and should be predicted by historical actors who, whatever their intentions, were criminal if they failed to understand what was to come. Both consequently reduced the political sphere, the sphere of legitimate debate, to something radically smaller than exists in functional democracies.

Similarly, the goals of transitional justice, of the Nuremberg...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• 1 Introduction
• 2 “No other explanation seemed possible”
• 3 Certain ideas of France
• 4 Making Vichy's Trials
• 5 Riom as National Revolution
• 6 Reynaud, Mandel, Auriol: The Limits of Legalistic Apoliticism
• 7 Riom as Parliament
• 8 The Massilia Affair and the Clermont-Ferrand Desertion Trials
• 9 Conclusion
• Bibliography
• Index