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3 The Priorities of Right and Political Liberty I. Introduction The priority of the right over the good is a central feature of Rawls’s doctrine of right and one of its most Kantian elements. Because it has been the target of strong criticism, especially by communitarians, I will briefly review Rawls’s definition and justification of it, arguing that once we augment Rawls’s conception of the first moral power so that it includes a capacity for moral autonomy , the priority of right flows readily from it (see, e.g., Sandel 1982). Such an extension is both required by the structure of Rawls’s constructivism and implied by a Kantian understanding of reasonableness. The major focus of this chapter, however, will be the priority of political liberty . The next chapter, which examines the priority of other basic liberties, might seem a more natural place for a discussion of it, as Rawls himself defends basic liberties as a group and leaves them unranked within the first principle. Nevertheless, I have chosen to discuss political liberty and its priority together with the priority of right because both, I shall argue, are grounded in our reasonableness , whereas the other basic liberties and their priority are grounded in our rationality. Rawls appears to recognize this foundational difference in Political Liberalism but fails to see its implications. I will reconstruct Rawls’s defense of the intrinsic good and lexical priority of political liberty as an institutional expression of our moral autonomy in the domain of right. His defense as it currently stands is radically incomplete, and his other, predominantly instrumental defenses are seriously and probably irremediably flawed. One striking implication of defending political liberty’s priority on these grounds is the hierarchical relationship thereby created between the political and civil liberties, with the former taking lexical priority over the latter. This result straightforwardly contradicts Rawls’s claim that these two classes of basic liberties are “of equal weight . . . with neither externally imposed on the other,” so the account I propose below is frankly revisionist (PL 412). I intend to show, however, that this suggested hierarchical relationship is the only defensible interpretation of Rawls’s theory, being directly implied by the similar relationship between the reasonable and the rational, that is, between the two conceptions of moral and personal autonomy discussed in the previous chapter. II. The Priority of the Right over the Good A. Definition Before offering a definition of the priority of right, I need to explain Rawls’s distinction between teleological and deontological moral theories. He defines teleological theories as those in which “the good is defined independently from the right, and then the right is defined as that which maximizes the good” (TJ 21–22). The good that teleological theories attempt to maximize can take many different forms: if it is understood as “the realization of excellence in the various forms of culture,” then the theory is perfectionist; if it is understood as pleasure, then it is hedonistic; etc.1 In short, there are at least as many teleological theories as there are maximizable conceptions of the good, including efficiency (allocative and/or productive), welfare, piety, glory, etc. However the good is understood, though, teleological moral theories treat right and principles of justice as mere tools to maximize it. Whatever moral value they have is derivative, and they may therefore be violated when doing so would better promote the good than obedience would.2 Rawls defines a deontological theory, on the other hand, simply as a nonteleological theory, that is, “one that either does not specify the good independently of the right, or does not interpret the right as maximizing the good. . . . Justice as fairness is a deontological theory in the second way” because it does not maximize the good but does define it independently of the right (e.g., 116 Reconstructing Rawls 1. TJ 22. For Rawls’s critiques of the teleological theories of utilitarianism and perfectionism, see TJ §§5–6, 27–28, 30 and TJ §50, respectively. 2. I will skip over many well-known complications here, including the fact that developing a very strong disposition to obey rules of justice may best promote the good, even if it leads one to obey rules in certain cases where violation would have been ideal. For a discussion of this and related issues in the utilitarian context, see Smart and Williams (1973, 42–57). [3.133.12.172] Project MUSE...

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