Up By Law

France's misguided effort to legislate values

Paris—In France, remembrance today of the 60th anniversary of the liberation of the Auschwitz camp has taken on a particularly sharp coloring, given the responsibility of the Vichy regime in sending many of its own Jews to the vast killing mill in southern Poland; but also because of mounting accusations more recently that anti-Semitism is on the increase in France.

It was expected, therefore, that the president of France's far-right National Front, Jean-Marie Le Pen, would piss into the commemorative soup by telling the revisionist and anti-Semitic weekly Rivarol, in an interview published on January 7, that "in France, at least, the German occupation was not particularly inhumane, even if there were some slip-ups, inevitable in a country of 550,000 square kilometers." And in a remarkable jump of logic, as well as a shoddy display of mathematics and geography, he observed: "[I]f the Germans had carried out mass executions in all areas as the popular view claims, there would have been no need for concentration camps for political deportees."

The daily Le Monde, reporting on the interview, was more accurate in its body count, citing a number of instances "forgotten" by Le Pen where many dozens of Frenchmen were killed by the Germans: "Forgotten, too, the deportation of France's Jews, planned as of June 1942 by the Gestapo section responsible for Jewish affairs and implemented with the complicity of the French Vichy state. Of the 75,000 Jews who were deported, fewer than 2,500 survived."

On January 14, citing French law, the French judiciary opened an investigation into the statements, on the grounds that they may have represented a "defense of war crimes" or a "challenge to crimes against humanity." To sustain the latter accusation, the prosecutors were looking closely at one passage where Le Pen declared: "It is not only from the European Union and globalization that we must save our country, but also from the lies about its history, lies that are protected by measures of exception."

What makes the incident interesting is less that it again confirms the extent to which Le Pen (who lost in a runoff for the French presidency in 2002) is an especially vile distillation of babbling thuggery; it is that the French authorities should presume to impose through legislation historical arguments that are more aptly the domain of public debate or disputation. The broader issue Le Pen's case has raised, not for the first time, is whether one can successfully advance mainstream values and truths, and by extension in the case of the Holocaust, moral ones, through the courts. The answer would seem to be no, whichever side justice is on.

Revisionism, when applied to Nazi Germany, is always an acutely sensitive topic, since the revisionists are regarded as virtual partners in crime. Often in the public's mind that alone precludes their right to be debated, making resort to legal sanction more acceptable. However, that was evidently not the view of French Jewish historian Pierre Vidal-Naquet, who, in a brilliant series of essays collected in his 1987 book Assassins of Memory (in French in its entirety here), dismantled revisionist arguments more effectively (and using a more far-reaching medium) than the courts ever could have.

However, Vidal-Naquet did not confuse debate and concession. In implicitly crediting the revisionists with the right to be afforded a reasoned riposte, he underlined that, "In the final analysis, one does not refute a closed system, a total lie that is not refutable to the extent that its conclusion has preceded any evidence." In that context, debate for him was not designed to convince the other side, but, rather, to educate the public. One might draw a moral from this, namely that the role of the public intellectual is, above all, to persuade. Better than enforcing truth through state institutions, truth must be made uncircumventable.

One person who learned this lesson to his considerable grief is British historian David Irving. He took Penguin Books and author Deborah Lipstadt to court, saying he was libeled when Lipstadt accused him of minimizing Adolph Hitler's responsibility for the Holocaust. Irving lost that case and an appeal, and the ensuing expenses the court made him pay up pushed him into bankruptcy.

There seem to be several problems in legislating values, or presuming to do so. The first is that this tends to impose through the force of the state a mainstream view that can alienate substantial portions of a population. That's not so much an issue anymore when the French consider the Holocaust; the battle was mostly won thanks to the revisionists' not having a solid leg in the historical record to stand on. It was, however, an issue when the French government introduced a law preventing Muslim women from wearing the veil in public schools, arguing that this went against the "values of the Republic." The quarrel continues, but it is undeniable that many Muslims still read the government's actions as a heavy-handed way of using the state's authority to coerce behavior on a matter of personal lifestyle that the state has no business being involved in.

A second problem is one that Americans, reared on the First Amendment, can sympathize with: Exercising the law to curb certain types of expression effectively shrinks the general confines of free speech. This was particularly evident when the French authorities recently denied Lebanon's Al-Manar television station, which is operated by the militant Hezbollah group, the right to broadcast to France via satellite. The authorities justified their decision by saying the station had violated the country's hate laws while also engaging in anti-Semitism.

Al-Manar indeed pulls no punches when it comes to discussing Israel or the United States, let alone "the Jews" (though it remains most ecumenical when addressing Lebanon's Christians); but as Jack Shafer persuasively argued in Slate, modern technology makes bans on stations impractical. Whoever wants to have access to a particular information source such as Al-Manar can do so through alternative means: satellite dishes and the Internet being two of the most obvious. If governments, however, choose to pursue their ban in those media as well, then very soon they might find themselves tumbling down the slippery slope of censorship.

As Shafer wrote: "The idea of banning a terrorist satellite channel when there is no clear and present danger to the citizenry seems so totally…French!"

A third reason why legislating mainstream values can be a problem rests on a more philosophical question: Is it advisable for a government to make laws for as many aspects of life as it can, or is it preferable often times just to allow society to regulate itself? The centralized French Jacobin state has tended to spawn laws like bacteria, so that state intervention is second nature to the French and far less controversial than it is in, let's say, Britain or the U.S. Indeed, one of the problems France continues to have with the European Union (itself a near-limitless fount of invasive and petty legislation) is that it's not quite sure how to dismantle its Etat providence (or providence state) without provoking an angry backlash from a population used to sucking on the Republic's ample teat.

Le Pen could not help but realize that his statements would put the judicial authorities in a bind: conviction might allow many in France to feel cleansed, but it will also earn Le Pen sympathy from those annoyed with the state's insistence that all must be cleansed, whether they are guilty of anything or not. Such a triumph would be a shame, and Le Pen can thank French law for that. He knows no one can ignore him now.