The Jurisprudence and Ethics of Creation and Destruction: A Generative Relational Perspective

Abstract

A party that has made something may often unmake it, and the law of property has treated that as among the strongest marks of ownership. This paper concerns cases where the category does not apply: a structure that several parties made together, that none of them owns, and that has come to have participants who were not present at its making. Its question is what standing a party has to undo such a structure. The paper begins from an argument its own framework supplies most readily, that destruction is objectionable because it removes possibilities that would otherwise have emerged, and rejects it. That argument replaces one quantity to be maximised with another and leaves the structure of the reasoning intact, and its corollary is unacceptable: a party judged to produce nothing and to consume what others produce would, on that account, have a case made against its continuing. Two grounds are offered in its place. The first concerns the limits of judgment, since a finding that something will yield nothing is a claim about the present state of the finder's knowledge. The second concerns what has already emerged, which is not reducible to what it produces. Two bodies of material are then read, the destruction of a work by the party who made it, and the ending of a life. On the second the paper takes no position on any practice and makes no claim of a clinical kind; it is read for one argument only, and that argument is used against the account the paper has already refused. The received treatments of a right to destroy are conceded at length, and the paper's object is distinguished from theirs: those accounts ask what an owner may do, and the cases here are ones in which ownership is the wrong category.