Homesteading Intestate Restitution Claims

In Roderick Long's 1994 Constitution of Liberty, he proposed a "Virtual Canton Constitution" for a consensual state-like organization in which he hoped anarchists and minarchists could find common ground. It has limited appeal to this geolibertarian minarchist, who sees it fundamentally as a clever but unpersuasive attempt to sidestep the minarchist critique of anarchism based on the free-rider problem of national defense. Long's basic hope seems to be that if anarchists give their voluntary national-defense club a "Constitution" with lots of language and institutions reminiscent of the U.S. government, then minarchists will forget that the free-rider problem still applies.

The above criticism is of course far too glib, and there are at least a dozen other interesting ideas in Long's annotated Constitution that deserve full comment. The most interesting is something that followed this language (which Long says he borrowed from the pre-2006 Libertarian Party Platform):

It shall be the chief aim of judicial adjudication to secure restitution for the victim to the fullest degree possible at the expense of the criminal or wrongdoer. [The 2004 Platform said: "The purpose of a justice system is to provide restitution to those suffering a loss at the expense of those who caused that loss.]

What gets really interesting is a few sentences later:

The claim of a victim (or class of victims) to restitution shall be a marketable claim, which may be acquired through gift or sale (or, in the case of deceased victims, through bequest or homesteading). Judicial systems relying on user fees have been criticized for giving no protection to the poor. Likewise, judicial systems emphasizing restitution and victim-directed prosecution have been criticized for providing no incentives for defending the claims of victims who die without close friends or relatives. The provisions in this passage are meant to overcome these difficulties. The marketing of claims to restitution worked fairly well in medieval Iceland. (See my "The Decline and Fall of Private Law in Iceland," in Formulations,Vol. I, No. 3 (Spring 1994).)

I'd several times heard anarcholibertarians advocate a purely retributive theory of justice, and I didn't understand how they couldn't recognize its failure to defend hobos and orphans from casual murder. This "homesteading" idea is a clever attempt to solve that problem, using hearse-chasers instead of ambulance-chasers to make the justice market work. However, aside from the coordination problem among competing homesteaders, and their incentives to settle cases for far too little in order to maximize profit margin, I don't see how justice would be served in the case of criminals with shallow pockets.

Note Jonathan Bond's 2005 paper (The Price of Private Law: A Critical Analysis of Murray Rothbard’s Model for Common Law Juridical Systems in the Free Society), whose abstract follows.

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This paper seeks to understand and critique the model of privately administered justice outlined and defended by Murray Rothbard (and subsequently adopted and extended by others following Rothbard). By sketching briefly the system Rothbard suggests and exploring the historiographical and praxeological defenses he offers in support of his system, the paper aims to illustrate several shortcomings inherent in both Rothbard’s system and his particular defenses. Moreover, after critically reviewing the historical examples Rothbard cites in defense of a fully market-based legal order, and after subsequently examining his model for private law in detail, it is argued that there is an important connection between the logical and historiographical errors which lie in Rothbard’s argument. Regarding Rothbard’s historical case, the central assertion is that Rothbard misreads or misinterprets the evidence upon which he relies, which in turn leads him to perceive the existence of stable private law orders in times and places where, the evidence shows, none existed. Concerning Rothbard’s positive model, it is argued that Rothbard has not, as he implicitly claimed, found a solution to the long-disputed dilemma regarding the adaptive character of common law; instead, it is maintained that Rothbard’s system does not convincingly prove how his model would preserve the liberty of producers and consumers of justice while ensuring that the libertarian axiom remains the primary canon of law in the private order. Finally, it is argued that Rothbard’s prima facie case for the superiority of private law does not hold, insofar as his system does not effectively prevent or even reduce the calamities all legal orders are designed to minimize, several of which are considered in detail.