My point was that the aggressor can legitimately homestead the unowned land of his victim, he becomes the rightful owner of the land. He is liable for the murder, that is all. His homesteading of unowned land is a separate issue. He cannot be considered to be stealing it, precisely because it has no owner.
so how would the agressor determine if the land is unowned or owned? ownership comes from homestead, paper trail is just recording ownership and not creating ownership. so no paper trail needs to be there, so why should there need to be a paper trail to have others rightfully inherit the land who are not the agressor?
As you say, documents just record ownership, they don’t establish it. The aggressor is in the same position as anyone else who finds some property which he believes might be unowned. He could just take it right away, assuming there’s no one out there with a claim on it. He could try to do some research so that he can be confident that no one else owns it already. Either way, if someone comes along at a later date, and can prove that it was their land, the aggressor is out of luck. I don’t believe that property rights should have an expiration date. Even if it’s 100 generations later, if somebody can prove some property is rightfully theirs, it should be recognized as such.
As they say, possession is 9/10ths of the law.
There is an idea called “we don’t destroy the world because of one stolen log”. I.e., if someone steals a wooden log of yours and sells to me, and I build an apartment building, into basement of which this log is incorporated, and then sell the apartments to a bunch of families, who move in, etc., etc., we don’t destroy all of this because of one log that was stolen from you. You need to be returned the value of the log — ideally, by the guy who stole it, but second-best by me or the owners of the apartments. Simply because, as mentioned above, all the (inhabited) world is unfortunately built one way or another using stolen goods of some sort.
So, the rule sounds somewhat normative, but I suppose all rights are normative, aren’t they?
Any response re: my government (devil’s advocate) argument from anyone?
I don’t see why the rights of restitution of the victim of a theft should be abridged (he be denied the return of his stolen log) for the convenience of third parties (current owners of the apartment). That said, he doesn’t have to exercise his rights in that way. I imagine that almost anyone in the situation of the victim would be happy to accept monetary restitution in place of demanding the destruction of the building so that he could have the log itself returned to him. Moreover, if that much time has passed, odds are he can’t prove it was his log anyway, otherwise why did he wait so long to demand restitution? So, in practice, I wouldn’t anticipate many instances of "destroying the world over one stolen log,"but the victim of the theft would nonetheless have the right to do so. The principle that property has no expiration date has a self-limiting mechanism re practical problems such as you’ve raised, in that, with the passage of time, it becomes increasingly difficult to prove ownership. As an ethical matter, we only care about what is the case. As a practical, legal matter, however, what’s important is what can be proven to be the case.