Consider three related scenarios:
In scenario #1, the answer (to my mind) is fairly simple. Who gets Bob's estate? Whoever homesteads it; the estate becomes unowned when Bob dies without an heir, and can be homesteaded like any other unowned property. We can follow the same logic in scenario #2 - whoever first claims the right of restitution against Bob's murderer gets it.
Do scenarios #1 and #2 point us in the direction of a solution for scenario #3? Can it be that whoever first claims the right to restitution against the murdering parent gets it? I think so.
Thoughts?
Very interesting scenarios these are!
Now, in scenario no.2, I would see trouble with homesteading retribution rights. One very important aspect of retribution, at least to my mind, is that it can be traded away, even to the perpetrator itself (i.e. he can buy my forgiveness). This allows for a market to emerge and it is my strong belief that no rational justice system would function without such a market.
But now, if Bob has been murdered, the only way any one could homestead his retribution right is to actually exert retribution! This right cannot be traded, it can only be exercised.
Perhaps such cases will be rare, but homesteading retribution clearly makes a dent in the rational justice system here.
The law might require that, for a person to be recognized as the new owner of Bob's right of restitution, he must submit a claim in writing to a notary/court/whatever - at which point the right is his property to exercise or not, or to sell if he pleases. That is, "homestead" may not be the best way to describe the assumption of ownership of this right by someone after Bob's death.
The only problem with this model is that the murderer himself might be the first claimant! After all, the murderer is definitely going to be the first to know that Bob is dead, so he has a one-up on the competition in the race to claim Bob's right of restitution, which is a problem, because the entire point of allowing Bob's right of restitution to be taken up by someone else is to prevent someone in Bob's position (no heirs) from being victimized by murderous folks who know they won't be punished for their crime.
"The answer cannot be no one"
I fail to see why not.
So, you think that giving the right to whomever claims it first, with the exception of the murderer itself, would be a good policy. I do not think it would.
You can keep the murderer from claiming the right, but can you keep his friend – himself innocent of any wrongdoing - from doing so? His brother? What if his cousin claims the right and proceeds to unceremoniously forgive the murder? What if the murderer pays someone to claim the right and then to forgive him? Can this be prevented?
The problem is even more general: what makes us think that whoever manages to claim first has any way of doing what the victim would have done with the right, even roughly? We can have no such guarantee.
If I’d have to choose between giving the right of retribution to whoever exercised it first and to whoever claimed it first, I’d surely go with the first system: retribution is at least being exacted, even if the victim could have preferred a monetary compensation to it. In the second way, neither retribution nor compensation is extracted. The crime goes unpunished.
But there must be a better way that either of the above.
Let me clarify, it is possible for the answer to be no one (i.e. it is not logically or physically necessary that the answer be someone) - What I am saying is that if the answer is no one, then problems arise, which we may want to avoid.
If the question is "when Bob dies, who gets his house," the answer should not be "no one," because 1) that's a waste of perfectly good capital (should it sit there unused until the Sun explodes?), and 2) of course someone will in fact take it regardless, best to have a law governing who gets it and how (isn't that the point of law, to allow for the peaceful allocation of scarce resources?) - if the law cannot handle this eventuality, and the fight for Bob's physical estate becomes violent, then the law has failed.
If the question is "when Bob dies, who gets his right of restitution," the answer should not be "no one," because then anyone who knows that Bob has no heirs can murder Bob and steal his possessions with utter impunity - and if anyone can, someone will. Granted, there won't be many people like Bob, and the smarter one's will spend a few bucks willing their property to someone, but there will be some Bobs out there, and it would be nice if the law could eliminate this loophole through which the Bobs of the world are victimized.
If the question is "when little Johnny is murdered by Dad, who gets his right of restitution," the answer should not be "no one," because then Dad can murder little Johnny with impunity - and I'd say this is a more realistic and worrisome scenario than heir-less Bob.
So, you think that giving the right to whomever claims it first, with the exception of the murderer itself, would be a good policy. I do not think it would. You can keep the murderer from claiming the right, but can you keep his friend – himself innocent of any wrongdoing - from doing so? His brother? What if his cousin claims the right and proceeds to unceremoniously forgive the murder? What if the murderer pays someone to claim the right and then to forgive him? Can this be prevented?
I agree with you, this is a problem - no solution comes to mind at the moment.
I don't actually think this is a problem. The victim is dead. He can't be helped, nor can he be harmed. The purpose of allowing Bob's right to outlive Bob is to protect Bob in life from people who would murder him if they knew they could get away with it - i.e. if they knew he had no heirs and his right would die with him. We don't need to consider Bob's interests - he has none, he's dead. All we need to consider is what works: i.e. what would have best deterred would-be murderers of Bob -without of course "over-punishing" the murderer. And anyway, how do we determine what's "just retribution" in any case whatsoever? When there's a contract specifying the penalty for non-compliance, we follow that - it is just by definition, just like a mutually agreed upon price is just by definition. However, when there is no contract, we're trying to find an objectively just price (ratio between the tort and the retribution/restitution), which we know is a futile endeavor, as it is for economic transactions. The best we can do is approximate in a value-neutral kind of way: i.e. an eye for an eye. A life for a life - and in this case, I think that works fine.
I agree.
Some general remarks:
If someone is the victim of rape or theft or some other crime, why do we say that only that person can seek restitution/retribution, and not third parties? Because to allow third parties to seek restitution/retribution would be to steal the right of the victim. Correct?
But one cannot steal from a dead person, and so if the victim is dead, then anyone can (and someone should) seek restitution/retribution from the murderer of the victim.
Can't we say the same thing about children who have been victimized? Even if a child-victim is alive, he/she cannot possibly exercise his/her right to restitution/retribution. Saying that a 2-year old who can barely walk or speak has a right to restitution is like saying I have a right to fly to mars by flapping my arms. It's nonsense. Or, like saying a dead man has a right to restitution from his murderer. So should anyone be allowed to seek restitution/retribution in place of the child? While neither a dead man nor a toddler can seek restitution/retribution, the child (unlike the dead man) can enjoy the benefits of restitution - it follows that anyone should be able to seek restitution/retribution for a crime against a child, but only insofar as they are acting on the child's behalf. Now what can that mean? If the parent is the criminal who victimized the child, it doesn't do much good for a third party to get restitution from the parent, and then give (for example) half of the money to the child: what can giving money to a toddler mean other than giving it to the parents of the toddler?
And now we have to find a legal framework for custody, which is to answer the question: when the child is alive and in the custody of the custodian (presumably the parents), to what extent can third parties interfere if the rights of the child are being violated by the custodian? I know Rothbard suggest a "baby market" but that only solves the problem of parents who abuse their children and don't want to keep them - what about parents who want to keep them, maybe who want to keep them precisely so that they can abuse them? And yes, I'm aware that child abuse will exist in any society, by its very nature it is very difficult to detect or prove. The question isn't "how do we eliminate child abuse," the question is "if a third party knows about and can prove that child abuse is occurring, what can that third party do to protect the child?" The answer should not be "nothing," and yet we don't want to eliminate the ability of good parents to raise their children by allowing unlimited interference from third parties.
The same issues surround adults who are physically unable to look after themselves: severely retarded individuals, elderly folks with advanced Alzheimer's, etc. All these issues require a satisfying theory of custody.
...just thinking out loud.
I think that the right of retribution/restitution to an abused child when the abuser is the parent or the custodian should just be postponed until the kid reaches a proper age. Let him decide what to do with it when he is able to.