Arguing the Holocaust: Legal Anthropology and Theological Form

ABSTRACT This article’s basic focal point is a central argument concerning the Holocaust as an unprecedented event against the backdrop of other mass crimes. Alongside the empirical fact of distinguishing between death and death, my emphasis is on an argumentative figure reflecting the theological rejection of the biblical election of the Jews. Starting with the epistemic distinction between capital crimes in domestic criminal law – for example, the distinction between murder and homicide – I address why such factual distinctions are not made with respect to externally committed mass crimes. Instead, we find an evocation of collective images of a specific population chosen for victimhood, images evidently drawn on to justify the crime. When it comes to discourse concerning Jewish victims of the Holocaust, it is striking that essential arguments center on the question of exceptionality; more specifically, that what seems at stake is negating that exceptionality. In their formation, such negating arguments correspond to theological discourse concerning Jewish chosenness: the Nazi negative election of the Jews as their central ideological victims is denied, with reference made to other historical examples of victimhood due to mass crimes. The theological figure at work here is manifest both in the German Historikerstreit of the 1980s concerning the crimes of Bolshevism on the one hand and Nazism on the other, and the current widespread tendency related the priority of colonial crimes vis-à-vis the Nazi mass murder: What came before, what was the more original crime? In this article, I wish to focus solely on a discursive argument in view of an emerging theological form in secular garb.