The radio, right now, is talking about the crimes happening in Darfur. We are very used to hearing about genocide or mass murder in terms of crime. This has been the consensus since the human rights movements of the seventies. It is a comfortable and pragmatic perspective, but from the point of view of critical philosophy, it is a huge lie. Philosophy that is critical does not abolish particular and contingent structures under the principle of sub species eternatatis, but, like a detective pondering the dog that didn’t bark in the night, inquires into the very possibility of the historic fact. A crime, then, requires not only a perpetrator and a victim, but a third power – embodied in the state – that judges what is and what is not a crime. How that power gains obedience – how a crime becomes a non-crime, and a non-crime a crime – is the really important categorical question posed by philosophy outside of the Enlightenment.

Take, for example, what happened on June 11th, 1942. Victor Klemperer, a Jew married to an Aryan in Dresden, is living in the apartment house the authorities have designated as the Jew House. Klemperer is a philologist, and he is keeping a secret diary. His project is to study the Nazi idiolect. He is, I believe, in his late fifties. Here he records a visit from the police:

“Upstairs everything seemed at first to be vented on Kaetchen, who was sitting in the bath… and appeared in her bathrobe. In the morning she had received a long, typewritten report from her brother-in-law about the air raid on Cologne, and about the great destruction. In itself nothing punishable, since the raid had been described in all the newspapers and since Ludwig Voss’s letters are patriotic. But to a Jewess! ‘That makes you Jews happy! You use it to make mischief!’ The envelope lay on Kaetchen’s table besides a postcard from her mother, who promised her cooking oil from her ration card (that, too, is a crime). The letter was found crumbled up in a leather armchair (“hidden”). Everything was ransacked, Kaetchen had to roll up the carpet, was kicked as she did so, wailed, was threatened, had to write down her brother-in-law’s address. Her rooms were in as great a chaos as on the first attack. The range of nasty words of abuse was rather narrow. Again and again ‘pig”, “Jewish pig,” “sow,” “piece of dung” – nothing else occurs to them. I was forced onto a chair in the lobby, was forced to take down the heavy paintings…I thought I was out of danger when The Myth of the Twentieth Century [the canonical Nazi philosophy book by Alfred Rosenberg] and my sheet of notes beside it led to a catastrophe. The time before, with an officer who was evidently more senior, book and notes had hardly aroused any objection. Now this reading matter was held against me as a terrible crime. The book was thumped down on my skull, my ears were boxed, a ridiculous straw hat of Kaetchen’s was pressed down onto my head. “Now you look pretty.” When I replied to questioning, that I had held my post until 1935, two fellows, with whom I was already acquainted, spat between my eyes.”

Klemperer’s sanity as a social being depends, crucially, on that distinction between what is punishable and what isn’t punishable – as is ours. That Klemperer’s privilege of checking books out of the public library falls, after this visit, into the punishable category almost crushes him.
…

The Nazi regime developed a sort of great encyclopedia of punishable types, and its fragments travel about today – lesbians in Florida, gypsies in Romania, Jews in Russia, etc. If the Enlightenment is represented by any one thing, it is the Encyclopedia, so one way of grasping the Dialectic of the Enlightenment is to suppose that it is confronted with just some such Nazi Encyclopedia, the mirror image of Diderot’s Encyclopedia, where the entries all seemed to be subtly distorted by some great malign force.

Interestingly, the issue of how a crime becomes a crime lept from philosophy to the courts in the West German prosecution of Nazi personnel. Adenauer made sure that the West German constitution contained a clause forbidding retroactive prosecutions – one could only be prosecuted for crimes that were crimes when one committed them. The point, here, was to create a legal equivalent for Adenauer's larger goal of encouraging Germans to forget about their recent past.

In a book we recently reviewed about the largest trial of Auschwitz guards and officers held by the West Germans in 1963, the author, Rebecca Wittmann, shows that the prosecution was hindered by the fact that it could only accuse Nazi guards of violating Nazi law. Since the state countenanced the extermination camp, the prosecution was forced to find and prove extraordinary acts of cruelty in the processing of prisoners for extermination. Hence, the upper tier of the camp management, who simply organized the selections and the functioning of the gas chamber, received lesser sentences than guards who were witnessed to kill, with "excessive cruelty" (for instance, putting a board across the throat of a prone prisoer and standing on it).