Of Buildings, Statues, Art, and Sperm: The Right to Destroy and the Duty to Preserve

Markets require some sort of property rights, including transferability. Without transferable property rights market relations cannot get off the ground. Moreover, markets assume that these rights refer to some resource, some thing that is the object of the market relationship. In this sense property is, as some commentators recently have argued, about things. Saying that property is about things doesn’t tell us very much, though. It tells us nothing about the sorts of things that are the object of property rights, and it gives no indication whether property rights are uniform and fixed regardless of the sort of thing involved. Things are not all of a piece; pencils are not Picassos. There is no good reason to think that the law of property should treat all things alike. Modularity can take us only so far. Property law does and should make distinctions regarding the rights that owners have or don’t have and the extent of those rights depending upon the sorts of things they own. This Article investigates distinctions that property law does draw or should draw with respect to the right to destroy. That right has important implications for the market because the consequence of full exercise of the right, i.e., destruction of the thing, is complete and irrevocable removal of an asset from future market transactions. Where the asset involved is of a fungible sort, a pencil, for example, there is little cause for concern about this loss. The losses about which we worry, however, are those involving non-fungible items, pearls of great price. Such losses include historic buildings and important works of art. Disputes involving the right to destroy have ranged farther, though. Among the most contentious and sensitive of these are disputes over the disposition of human reproductive material. These controversies too have implications for the market, as human sperm and eggs may be sold and bought under certain conditions. Despite its importance, the right to destroy is one of the least discussed twigs in the proverbial bundle of rights constituting ownership. A recent article by Lior Strahilevitz analyzes the right in detail. Other than his article, only an earlier article by Edward McCaffery, and 1999 book by the late Joseph Sax, Playing Darts with a Rembrandt, have discussed the right to destroy within the past several decades. McCaffery’s essay takes the position that most courts have adopted, rejecting the claim that owners have the right to destroy that which they own. McCaffery regards such a right as “an embarrassment in Anglo-American law.” This appears to be the conventional wisdom, with the recent edition of Black’s Law Dictionary excluding the right to destroy from the incidents of ownership included in its definition of ownership. More recently, however, Lior Strahilevitz has provided a powerful defense of the right to destroy. Strahilevitz bases his argument substantially on expressive values implicated in an owner’s preference to destroy an object that he owns. Sax’s book opposes a right to destroy with respect to works that have cultural significance. This Article analyzes the right to destroy from the perspective of the human flourishing theory that I have been developing over the past several years. I will discuss four controversies in which the related questions whether owners have a right to destroy what they own and whether they have obligations to preserve their property. The settings that I will examine, albeit briefly, are historic preservation, artists’ destruction of their own work, removal of public statues, and destruction of frozen sperm. My aim is to show how the human flourishing theory provides an illuminating framework for analyzing what is at stake in disputes over an owner’s asserted right to destroy something that he owns. Hopefully, this framework will provide a more satisfying, analytically and morally, means of resolving such disputes. To set the stage for these case studies, I begin with a brief summary of Lior Strahilevitz’s argument in support of the right to destroy.