The recent spate of monument toppling in America – which has just recently made its way up into Canada – has rendered a long-standing question in social and political philosophy just a tad more urgent. What are we to do with our heroes who, as it turns out, weren’t all that heroic after all? Well, let’s see.

It’s not that we didn’t know, back when these monuments were erected, that these men were racists or misogynists or homophobes or whatever. It’s that we didn’t care. Now we do. So whether we’re erecting monuments or toppling them, we’re not trying to change public perceptions of history. General So-and-So on horseback doesn’t tell you anything other than his name was General So-and-So and he may or may not have ever ridden a horse. If you want to know what happened, look to the bookshelves inside the library, not to the statue in front of it!

Think about who, among our erstwhile contemporaries, we’d want to memorialize. Nelson Mandela? Mother Teresa of Calcutta? And what will our grandchildren do with these monuments when it’s revealed that …? No, I dare not impugn the unimpugnable. Except to say that it’s quite the opposite of what Mark Anthony said of Caesar. It’s the good that men do that lives after them. The evil Is oft interred with their bones. But, apparently, not forever.

No, in erecting or toppling we’re making a statement of approval or disapproval. But not of what happened back then. What sense does it make to approve or disapprove of the roles of Harold or William in the Battle of Hastings in 1066? Or of Napoleon or Blucher at Waterloo? Nature’s red in tooth and claw. And so is human history. If you win you get a statue. If you don’t you don’t. Unless you’re Robert E. Lee, or Silent Sam, or Louis Riel.

No, in erecting or toppling we’re expressing public approval or disapproval of what’s happening today. We approve of women’s equality, so up goes Nellie McClung. We disapprove of slavery, so down comes Silent Sam. Notwithstanding we hung him back in 1885, we now support the struggle of our Metis brothers and sisters, and so up goes Louis Riel. We’re all paying for the detritus from the treaties our First Nations signed with cannons trained on their villages, so down comes Sir John A. MacDonald. And so on.

If public statues were lessons in history, then by all means let’s have a bronze black man in chains, cuz maybe little Cindy-Lou didn’t know her black playmates were descended from slaves. Of course then we’d also have to put Silent Sam up again. But if the sculptor made sure the slave looks appropriately noble and Silent Sam slack-jawed – and he’d be sure to hear about it if he didn’t – we’re not doing history, we’re doing propaganda, not all that dissimilar to the cartoon renderings of Adonis-like Aryans and hook-nosed Jews under the watchful eye of Joseph Goebbels. Either you’re telling what happened or you’re telling what to think about it. In a book you can do both. In a statue you can’t.

That ‘we’ approve? That ‘we’ disapprove? Who is this ‘we’? More often than not it’s some committee of ‘engaged’ citizens. But no committee can ever reflect the full spectrum of our disparate judgments. So whatever some committee will put up today, someone can be counted on to vandalize it tomorrow. It’s just freedom of expression.

No it’s not. It’s silencing expression. It’s silencing the expression of those who put up the statue. It’s the same as crashing the hall to prevent a reviled speaker from speaking. Freedom of expression is not the freedom to prevent the expression of others. It’s the freedom to speak when it’s your turn. And, of course, to have your turn. It’s the freedom to erect your own statue.

And therein lies the rub.

A statue in the town square is a piece of public site art. Let’s put aside for the moment the distinction between public site art and public sight art. All that need be acknowledged for the moment is that display is an exclusion-conferring concept. That is, unless I can distinguish between what’s on display and what isn’t, it isn’t. So a statue set cheek-to-jowl with a thousand other statues in the public square is not being displayed.

It follows that a license to display is simultaneously a license to exclude others from displaying, at least in the same space and at the same time. That’s why municipalities have a duty, a duty not to vet would-be demonstrations – that would be censorship – but to coordinate them. For example, to confine the Alt-Right to this side of the street, and the Antifa to that side of it.

The problem, then, is not so much those who have a contrary opinion to that of the town councilors who’ve just erected a monument to Martin Luther King. The problem is those who’d deny these malcontents the right to be afforded another square in which to erect a monument to George Wallace.

It would be sound, but I think spurious, to object that there’s not enough park space in the city to accommodate all the statues deserving of erection, including the one to my own sacred mother. (Okay, she was no Martin Luther King, but she did make great dill pickles.) The problem is that communities want the right to approve of some things and disapprove of others, and to do so as a community. They want to be able to say that this is what we stand for, where by ‘we’ is meant an exclusion-eschewing concept.

Public dissention on a community-defining value betokens that we’re not a community. As things stand, if there’s been a terrible tragedy, the mayor can express his condolences to the families on behalf of all of us. But not if some of us are publicly celebrating. How would it have been received if on 9/11 Rudi Giuliani had to preface his outrage with, “On behalf of only some New Yorkers …”? He’d have been better off saying nothing at all!

Similarly, then, a statue of George Wallace at one end of the park defeats the purpose of the Martin Luther King statue at the other. It announces that we’re not one community but two. And that the two are hostile to each other.

So one of the core questions in social and political philosophy is whether, among the rights an individual acquires by entering into civil society, is the right to a social identity, an identity that can only be afforded by her belonging to a particular community, a community stable and homogenous enough in its values to offer its members a social identity. I need to be able to tell myself that I belong to that community that honors the memory of Martin Luther King, and if anything dishonors that of George Wallace. But I can’t say that if King and Wallace are being given equal time, or in this case equal space.

The existence or nonexistence of this right sits at the core of the debate over what’s come to be called identity politics, be it the identity politics in Europe and America that’s driving the resistance to immigration, or the identity politics of blacks or Jews or homosexuals, each playing their own special victim card with a view to guilt-ing concessions out of white male heterosexuals, who are just now cottoning on to how to play this game themselves.

Identity politics isn’t about the right to be who we are. It’s about the right to be who we think we are. And, of course, to be ‘respected’ for it. There’s a Seinfeld episode in which another comedian converts so he can be funnier. Jerry is rightly outraged.

We Jews can’t cook. Italians can but they’re not funny. Germans? Neither. These properties only replicate if present in both parents. Hence Italian Jews are as kitchen-challenged and dour as Germans. I know all this because I took biology in high school.

In Political Science 100 we’re taught that a nation is a people, a government, and a territory. No it’s not. Unless we all believe some of the same things, we’re not a nation. The question is always what beliefs need these be? We signal these minimal commonalities by our creeds, or our pledges of allegiance, be it to the flag or to the Queen. I can’t stop myself snickering when I hear an American trying to sing his national anthem, or a Canadian drone through hers like a Gregorian chant. But even if I can’t engage in these rituals myself, even if I wouldn’t fight for my country, I’m glad, though proudly ungrateful, that there are people who would. And I know that these rituals are important to them.

If you take a knee you’re not putting your hand on your heart. If you don’t doff your hat on Remembrance Day you’re saying they didn’t die for you. And that means you wouldn’t die for the rest of us. These gestures are not trivial. They matter. Trump’s outrage may be a performance, but the outrage of the people who elected him is genuine. And as just argued, it needs to be.

Most Canadians, myself included, regard America as a nation of five year olds. But for that very reason especially dangerous, as evidenced by its current courtship with fascism. Fascism cannot abide dissent because it can’t survive it. Neither can virtually any ism, be it on the so-called right or the so-called left. The social justice warrior is no more tolerant than the racist or homophobe she takes such self-righteous pains to silence. The only ism that may be exempt is liberalism.

Why only maybe? Because the only way liberalism can be exempt is if it’s become, and if it can remain, definitive of our national identity. But can it? Not much more than four score and seven years ago our fathers [sic] brought forth on both sides of the 49th Parallel two new nations, conceived in liberty and dedicated to the proposition that neither Congress nor Parliament shall make any law establishing any doctrine. Now we are engaged in a great culture war, testing whether these nations, or any nation so conceived and so dedicated, can long endure.

On its own, the fight over monuments is trivial. But it’s as good a stand-in as any for the struggle between those defenders of liberalism who are hanging on by their fingernails, and the ever-recurrent forces of communitarianism. And then within the latter, whether it’s to be a fascist communitarianism or a Soviet one. So if finding a solution to the monument crisis is the test of whether liberalism can long endure, then we liberals better get cracking and find one.

To that end, let’s thinkfor a moment about public sight art. Let it be granted that I can’t run a swastika up a public flag pole. But what about in my own picture window? Germany had good reason not to allow this. It was occupied by those who had good reason to fear the resurgence that might have coalesced around that symbol. And in Germany that’s still the rationale for the ban on Nazi symbols. But in North America the official worry is incitement, and incitement is actionable under Mill’s Harm Principle. (Though it’s unclear who’s more likely to be incited, the neo-Nazis or the Jews.)

I say the ‘official’ worry because I suspect that incitement is really just a beard. The swastika doesn’t incite. Certainly no more than does the crescent. It doesn’t undermine national identity any more than the Confederate flag, or the Cross, or the Star of David. No, it’s that the swastika offends. Public sight art, if it’s to be actionable, is actionable not on Mill’s Harm Principle, but on Joel Feinbergs’ Offense Principle.

But freedom from offense is not a communitarian value. What could it mean to say a community is offended? And so citing offense escapes the charge of courting communitarianism’s tyranny of the majority. Freedom from offense is only of value to an individual, and so making offense actionable need not do violence to our liberal commitments.

Thus what remains to be shown – and this is no small task – is that a) freedom from offense is one of the reasons we enter civil society in the first place, and b) this freedom can be protected without doing violence to another reason we enter civil society, namely to provide some protection to freedom of expression.

I can’t presume to answer either of these questions here, except to point out that defenders of the Offense Principle argue that offense is provocation – usually but not exclusively to anger – and that provocation is not expression. This is because I can piss you off without in any wise expressing myself, for example by cutting you off in traffic. Fair enough. But what about inadvertent provocation, i.e. provocation which is the autonomous effect of some expression? For surely there’s a difference between my saying something that offends you and my saying something to offend you

Thus the argument is that since the only reason I could be displaying my swastika in my picture window is to offend you, if it succeeds it may therefore be actionable. I say “if it succeeds” because if no one’s offended it’s unlikely an information will be made. (That is, we can safely rule out the charge of attempted offense,. Surely failure to offend should be punishment enough.) But if I paint my house lime green because I like the color, then, on my account, even if I anticipate it’s likely to offend the neighbors, it’s not actionable.

So on my account actionability hangs on intent. Establishing intent is often a challenge for the law. But the law is no stranger to this challenge.

Do I like this solution? Not one whit. But I think it’s the best we can do. And, as it happens, it’s by and large what we do do.

Are there people who would like to express their admiration for George Wallace? Certainly. And they have plenty of mediums by which to do so. But erecting a statue to him is not among them. Erecting a statue to him could only be an attempt to offend. By contrast, the statue to Sir John A. was never intended to offend, neither when it was erecting, nor today. The fact that it does offend doesn’t cut the mustard. So he stays. And the same goes for Silent Sam. Are there people who would like to express their admiration for the Confederacy? So a Confederate flag in the window stays. And so on.

Are there people who would genuinely like to express their admiration for Osama bin Laden? I know there are, because I’m one of them. So a portrait of him in my picture window stays. But now comes the distinction between public sight art and public site art. What argument can be given for why those of us who admire bin Laden can’t put a statue of him in a public park? I can think of only one. It wouldn’t last the night. But given the way I’ve reluctantly parsed the issue, as a liberal I couldn’t countenance the town prohibiting it.

That’s the problem with liberalism. It’s easy to preach. It’s not so easy to practice.





Definitive of the Millian liberalism to which most of us purport to subscribe is the view that a) all is permitted save what is prohibited, and that b) a necessary, albeit insufficient, condition of some behavior being justifiably prohibited is that it be demonstrably harmful to others.

Not unlike any one of the Ten Commandments, the devil is in the details, and details are what the Decalogue assiduously avoids.

“Thou shalt not kill!”

Anything? Ever?

“Well no. Obviously there has to be exceptions.”

Which are …?

“Well, that’s something you’re going to have to work out amongst yourselves.”

So we shouldn’t kill who and when we’ve decided amongst ourselves that we shouldn’t kill. Is that the divine advice for which Moses spent forty days and forty nights without the conform of his tent?!

God has said some pretty vacuous things, and so, apparently, has Mill. According to the Harm Principle, what counts as harm? Typically but not necessarily tissue damage, But what about symbolic harms, like the subordination of women through their representation in pornography? What about offense, like the words nigger and kike?

And what counts as demonstrability? Is it sufficient, as the Supreme Court of Canada ruled in Butler, that notwithstanding the absence of a preponderance of evidence, the state need only have a reasonable apprehension of harm? And is an apprehension reasonable just in case it’s not unreasonable? If so, what is there that couldn’t be judged not unreasonable? Given that the words nigger and kike are known to be highly provocative, surely it’s not unreasonable to likewise worry that a human sneeze might be misunderstood as the ultimate insult when interpreted by the highly sensitive auditory apparatus of our brothers and sisters on Mars.

All right, let’s take a look at a more real world case in point. Let it be supposed, however fatuous or spurious the arguments for this may be, that

1) using a sleeping infant as a visual masturbatory aid is some kind of harm to that infant.

And let us further suppose, however unsupported this might be by any data, that

2) exposure to child pornography increases the likelihood that one will engage in that purportedly harmful behavior.

And, just to be jurisprudentially rigorous, let us also suppose that

3) the criminalization of such exposure is likely to reduce the incidence of such exposure, and that

4) any right one might have to such exposure is outweighed by the harm cited in (1) above.


It follows from (1) through (4) that the criminalization of exposure to child pornography satisfies Mill’s Harm Principle.

But now consider this. As is well known, there are fetishes, some of which we share, some we don’t share but understand, and some we couldn’t share because we don’t even understand them. As it happens I’m not a pedophile, but I understand it. I’m also not into ladies’ shoes and, to be honest, I don’t understand those who are. As it happens I’m an out-of-the-closet vanilla heterosexual. But I don’t condemn people who are sexually aroused by young children or ladies’ shoes, any more than I condemn people who are aroused by adults of the same sex or, like myself, adults of the opposite sex.

Not being a sexologist I neither know nor care whether our sexual orientation is something we’re born with or is socially constructed. For that matter – and again I have to be honest – of all the things I care least about, your sexual orientation, whatever it may be, is pretty much right at the top of the list. Unlike some people, I just don’t find sexual orientation all that interesting.

But what I do find interesting, and what I do care about, is jurisprudential reasoning, and more particularly what jurisprudential reasoning might be involved in parsing the following case:

Suppose that in the same way that some people are into ladies’ shoes, I’m into infants’ clothing. Pictures of naked infants leave me absolutely cold. Pictures of their clothing, with or without them in it … well, there are just no words to describe my excitement! Am I a pedophile? Absolutely not. In fact I don’t even understand it.

Now suppose I’m arrested for exposing myself to child pornography. Notwithstanding I don’t understand pedophilia, I acknowledge that it’s not unreasonable for a judge or a member of a jury to suppose that my fetish for infant clothing is just a variation on what must be my pedophilia. My question is: ought that association be regarded as defeasible in a court of law? And if it is, on whom falls the burden of proof? That is, is it an element of the charge – if so the onus would fall on the Crown – that my viewing of the clothing is a surrogate for the viewing of the infant? Of is the court entitled to assume that inference, and it falls on me to show that in my case that inference is unwarranted?

Have empirical tests been devised to reliably determine what’s arousing me? Apparently there have. Apparently sexual arousal is detectable. So why might the courts be disinclined to allow the results of these tests being placed into evidence? If my response is to the clothing but not the infant, then the harm argument cited above, be it sound or not, doesn’t come into play.

My suspicion is that the Crown would not want to assume the burden of establishing the connection between the fetish and pedophilia, either as a rule of thumb or in my particular case. One reason for this is that the Crown might not want to incur the cost of these tests. And few defendants have the resources to pay for these tests themselves. But in any case I don’t think the court would be inclined to allow the accused to show the disconnect even if on his own dime. And I suspect the reason for this has nothing to do with pedophilia. I suspect it has everything to do with not wanting to allow the precedent of allowing an empirical challenge to inferences upon which many of our criminal offenses hang.

Such as? Well, for one, the inference from either a) anti-Zionism or b) 9/11 Trutherism, or c) Holocuast-denial to d) anti-Semitism, then from d) anti-Semitism to e) so-called hate speech, and then from e) so-called hate speech to f) incitement.

What’s especially telling about these inferences is that a) anti-Zionism and b) 9/11 Trutherism and f) incitement are reasonably well defined. And e) hate speech could be defined as what it would not be unreasonable to worry could lead to f) incitement. But notwithstanding I’m a Jew, I haven’t the faintest idea what would count as either c) Holocaust-denial or d) anti-Semitism. Nevertheless, the inference from a) anti-Zionism or b) 9/11 Trutherism or c) Holocaust-denial to f) incitement is at least as incorrigible as the inference from my infant clothing fetish to my pedophilia.

Here’s a third example. As you’re reading this you’ve inferred that I think the incorrigibility of these inferences is unjust. But did I say anything of the sort? No I did not. And yet critique is almost invariably interpreted as opposition.

Well yes, I am arguing against that inference.

My own positive view, for what little it’s worth, is that these unsound incorrigible inferences are not intended to be subject to such analysis, any more than the concepts of race or God or any number of concepts are intended to be subject to analysis. They’re moves in what Wittgenstein called language games, which are in turn constituents of what he (didn’t but could have) called political discourses, which in turn are constituents of what he called our forms of life.

Some people think they can change a form of life not to their liking by ‘correcting’ some erstwhile incorrigible inference. As a prime example of this, think of the current challenge to the binary of male and female. I wish these social justice warriors God’s speed. But I think there’s a much more direct way by which to protect our right to our fetishes, the practice of historical revision, or whatever.

Instead of challenging one of these inferences, just don’t give it uptake.

Since you really don’t understand the inference you don’t have to pretend you don’t. You need only pretend you don’t understand that others understand it. If this be doubted, think of how this works when you’re on vacation abroad,. You’ve rented a car, you’ve inadvertently cut someone off in traffic, and he’s berating you as he pulls up beside you at the next red light. “I’m sorry, but I don’t understand Italian!” Watch his high dudgeon deflate like a spent erection.

Try it. It works every time. Nothing debilitates like the look of incomprehension.

But that’s not the only payoff. If I don’t understand your reasoning, it’s going to occur to you to wonder why. Perhaps not immediately, but eventually it’s going to dawn on you that maybe, just maybe, it’s because your reasoning is incomprehensible. So you’ll give it a check, only to discover that it really doesn’t make any sense. At which point you have only two options. Either you drop the inference and behave accordingly, or you deny that your judgments need to make sense, at least in the domain in question. Individuals can do that. Courts of law can’t. Or if they do, they cease to be what they were and become something else.

Courts of law deserve our respect. The something else deserves a bullet.