The problem with that condemnation is that private property is very general and flexible. It can be used, along with contracts, to create other sorts of property. For instance, old-style Stalinist collective property would result if all property owners voluntarily donated their property to the state and also signed a contract agreeing to act as agents of the state, so that if they acquired anything that was not already owned, they agreed to homestead it on behalf of the state. So if we want to condemn Stalinist collective property, we have to look very carefully for something about it that distinguishes it from private property. Oddly, it seems as if the most significant difference might be the historical circumstances by which the property was collectivized. That has nothing to do with property norms, but instead depends only on persons succeeding or failing to interact voluntarily and make binding agreements.
Nozick pointed out that we can’t judge the justice of a situation by the pattern created alone. The historical events that led to the outcome can act to condemn or justify it. If a “good” outcome results from some participants dominating others, that does not succeed in justifying it. If a “bad” outcome results from everyone voluntarily obeying the established rules and customs, then perhaps we should condemn the rules, but we can’t condemn the outcome as such. So libertarian can’t automatically condemn esoteric property norms without first investigating whether those norms were adopted and are maintained voluntarily. All that is left is self-ownership.
This takes a bit of pressure off the so-called “left-libertarians,” who advocate alternatives to private property such as Georgism. But it also might contradict any basis they have for preventing dissidents from experimenting with disfavored property norms, including the possibility of returning to private property. How could they prevent this? They could treat their property norms as a permanent binding agreement, one which can never be terminated or modified. This seems to require overconfidence, to a degree that conflicts with the ideal of freedom they espouse.
So if I am correct in guessing that private property and contract can recreate any sort of serious property norm, then it follows that property norms do not determine whether the participants in a particular social arrangement should count as possessing liberty. What matters is whether they have chosen their arrangements and norms in some important sense, or had them imposed upon them without any significant option for replacing those they wish to abandon or reviving those they may regret having lost. If an arrangement has resulted from purely voluntary interaction, liberty remains intact.
That does not say that an outcome that arose through voluntary interaction could never be improved, just that such improvement can occur voluntarily.
Issues raised but not discussed:
- What does “voluntary” mean when basic norms are being established or modified?
- How “binding” can binding agreements be before they contradict liberty?
- Can other kinds of property norms create private property?
- What are the minimum criteria for liberty?
- Can self-owners cause their self-ownership to end?