Exit legitimacy.

Author:Francis, Daniel
 
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Abstract

Although it is widely appreciated that rights of exit from a legal order can be important and valuable, there currently exists no adequate account of the relationship between exit rights and legitimacy. This Article cures that deficiency by describing the contribution made by exit rights to the legitimacy of a legal order--a contribution that I call the "exit legitimacy" of that legal order--and offers two accounts of its normative significance. On the "thin" account, exit rights operationalize consent by making it more genuine, more ascertainable, and more closely related to relevant acts and relationships of governance; on the "thick" account, exit rights instantiate a value that I call "political autonomy." The Article offers grounds to think that, while exit legitimacy is salient in legal orders of all kinds, it is particularly significant for international orders and institutions, which often lack the democratic, traditional, and other legitimating resources available to their national equivalents. Finally, to complete the account of exit legitimacy, the Article considers and responds to four of the strongest objections to which it appears vulnerable. It demonstrates that none of these objections convincingly undermines the case for this unique ground of legitimacy, and that each provides useful guidance for promoting exit legitimacy in legal orders of all kinds.

TABLE OF CONTENTS I. INTRODUCTION II. EXIT IN THEORY AND PRACTICE A. The Salience of Exit B. The Neglected Relationship between Exit and Legitimacy 1. Liberal Rights Theory 2. Social Contract Theory 3. International Legal Scholarship 4. Secession and Self-Determination III. EXIT LEGITIMACY A. The Claim 1. "Exit" 2. "Rights" 3. "Legitimacy" B. The "Thin" Account C. The "Thick" Account 1. Political Autonomy 2. Exit Rights as an Instantiation of Political Autonomy D. Exit Legitimacy and the International Sphere IV. SOME OBJECTIONS AND RESPONSES A. Cost, Burden, and Attachment B. Insufficiency C. Incentives, Behavior, and the Atrophy of Voice D. Exit Ex Post V. CONCLUSION I. INTRODUCTION

The search for legitimacy--the search for reasons to accept or comply with legal orders and institutions, and with the norms and decisions they announce--may be the oldest problem of political theory, but the explosive emergence of international orders and institutions since 1945 has unleashed a new version of that problem. This new version presents a sharp challenge to our existing toolkit of solutions: familiar accounts of legitimacy, developed with the nation-state in mind, often fail to convince at the international level. But that very fact makes the international sphere a promising setting in which to identify and explore sources of legitimacy that lie hidden from view in national orders, where democracy, tradition, participation, and the sheer weight of history can easily dominate the picture. In this Article, I will argue that one of the most important of these sources is the exit right, which makes a distinctive--perhaps even a foundational--legitimating contribution that I will call the exit legitimacy of that order. (1) And while exit legitimacy can play an important role in a wide variety of orders and institutions, from private associations and nation-states to international organizations, there are reasons to think that it is particularly significant at the international level.

Rights and mechanisms of "exit" (by which I mean the voluntary renunciation by a governed entity of its membership of an order or institution, along with all the duties, obligations, rights, and benefits that pertain thereto) have interested positive political theorists, liberal rights scholars, social contractarians, international lawyers, and those concerned with secession and self-determination. And while these scholars have illuminated many of the important consequences, benefits, and difficulties associated with exit rights, the relationship between exit and legitimacy has not been seriously explored, except in contractarian scholarship (where, as we shall see, its treatment has been unsatisfactory). One important form of exit right in particular--the right of a state to exit from an international institution--has received virtually no serious attention in normative theory. But this Article will argue that orders and institutions that protect the exit right (e.g., the European Union since the Lisbon Treaty, as the United Kingdom has reminded us very recently with the astonishing outcome of the "Brexit" referendum) enjoy a crucial legitimating resource that is unavailable to those that do not (e.g., the United Nations).

While I will lay my focus primarily on international institutions, I will make my case in terms that are as general as possible, reflecting my view that rights of exit can make a material contribution to the legitimacy of other orders (such as nation-states) too. One consequence of this approach is that I will have relatively little to say in this contribution about law as such: I will reserve for subsequent work the difficult problems of institutionalizing the value of exit legitimacy in specific legal orders and institutions, and the challenges of balancing the demands of exit legitimacy against the myriad of other considerations that typically constrain institutional design or reform. So those expecting specific doctrinal prescriptions for national or international legal orders will be disappointed. My concern here will be very strictly with stating and defending in normative theory the proposition that exit rights ground a particular and valuable source of legitimacy in legal orders, particularly, but not exclusively, international ones.

Accordingly, in the following pages I will set out the case for exit legitimacy and offer two accounts of its normative force. The first, a "thin" account of exit legitimacy, rests upon the broad consensus

in international law and liberal thought that consent is an important (perhaps even the dominant) source of legitimacy. This thin account argues that exit rights operationalize consent by making consent more genuine, more ascertainable, and more closely related to the relevant act or situation of governance, while avoiding recourse to doubtful notions of promise or contract. The second, a "thick" account of exit legitimacy, is much more complex and ambitious. On this thick account, exit rights instantiate what I call political autonomy: the ordering of a political order or institution such that the governed entities are--strictly and literally--free, equal, and independent. 1 offer here only a sketch of the broader implications of political autonomy.

Finally, I will consider four of the strongest objections that might be directed at exit legitimacy. Put briefly, they are as follows: first, that exit is too difficult or costly to be meaningful in practice; second, that, even when exit is practicable, it is too insubstantial and weak to do the normative work asked of it; third, that, even if exit rights are in some sense desirable, they generate unhelpful and destructive incentives and behaviors among governed entities; and. fourth, that exit rights should not allow an entity with outstanding or undischarged obligations to exit the political order or institution. I will show that none of these objections is fatal and that each of them provides helpful guidance for projects of institutional design motivated by the normative appeal of exit legitimacy.

  1. EXIT IN THEORY AND PRACTICE

    1. The Salience of Exit

      The practical importance of the right of exit blazes from the pages of history. For centuries, restrictions on exit have been associated with oppression and privation, (2) exemplified by the ties that bound Ptolemaic peasants or English villeins to their land, (3) the English Poor Laws, (4) and the odious Fugitive Slave Acts. (5) Conversely, exit rights in various forms feature in many of the great achievements of emancipation, from the Delphic manumission rite with its explicit conferral upon the freed person of the right to "house where he desires" and to "dwell in whatever city-state he wishes," (6) through the Magna Carta with its right to "leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war," (7) to the most famous exit of all, the Declaration of Independence.

      In our own era, too, oppression and suffering have walked hand-in-hand with exit restrictions. Exit rights were prominently curtailed by Bolshevik Russia, (8) Nazi Germany, (9) various states during the Cold War (most famously manifested in the Berlin Wall), (10) and, until very recently, Communist Cuba. (11) Still today, exit restrictions are imposed by North Korea on its citizens, (12) by Israel on Palestinians in the Occupied Territories, (13) and by Iran on women. (14) Conversely, legal instruments for the protection of fundamental rights frequently include rights of exit and emigration: a range of twentieth-century constitutional or quasi-constitutional instruments do so, (15) as do a number of international and regional agreements for the protection of human rights. (16) Both the European Union and the United States guarantee citizens the right to exit from their component states (although not, oddly, from the unions themselves). (17)

      So there are compelling anecdotal grounds, at the very least, to suggest a connection between the spread of exit rights and modern liberal constitutional democracy. And it is not hard to understand why they might be connected: at the heart of much liberal normative theory is "[t]he personal liberty ... not to be coerced into, or trapped within, ways of life" (18) and the right to have one's fundamental relationships be voluntary rather than imposed. (19) We might also note some implications of exit rights in positive political theory that appeal to the liberal project: for example, as Albert Hirschman famously argued, the...

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