autonomy as a foundation for a theory of free speech and the adversary system

Abstract

This paper is a political and constitutional interpretation of autonomy as a value that justifies the American adversary system and freedom of speech. Traditionally, autonomy has been understood in terms of pursuing an individual?s self-interest by denying the government?s paternalistic intervention from the perspective of anti-perfectionist liberalism. In the arena of free speech, autonomy has been the prevalent justification, by theorists, for the protection of individual speech with minimum governmental interference so as to increase an individual?s self-fulfillment. However, collectivist approaches lay a persuasive foundation for governmental intervention in speech in order to reinforce people?s autonomous deliberation through the democratic decision making process by restraining the side-effects of large media?s monopolization of deliberation. This justified paternalism does not harm autonomy, which is the foremost concern of individualist theorists of free speech. Thomas Scanlon?s idea of listener?s interest can provide a useful theoretical foundation for a theory about the mutually supportive relationship between autonomy and paternalism in the arena of freedom of speech. In addition, Joseph Raz?s perfectionist liberalism and autonomy theory lays jurisprudential foundation for the claim that the government can legitimately retain the power to paternalistically control heteronymous activities in order to guarantee the plurality of options for autonomous decision. This newly positioned relationship between autonomy and paternalism in free speech theory can be applied to the adversary system according to the reflective and analogous relationship between freedom of speech and the adversary system. They pursue the same value, autonomy, as their functional purpose. Because paternalistic interventions into autonomy can be accepted to some extent in the perfectionist liberalism of free speech, the value of autonomy in the adversary system can be interpreted differently from the common understanding of individualistic liberalism, which is also called the Dominant View in the field of legal ethics. The Dominant View justifies lawyers? amorality using as its excuse the liberal ideal of the adversary system: maximizing interests of the client. With autonomy and paternalism in an inter-dependent relationship, which is set up in perfectionist liberalism, this Dominant View can be reasonably criticized.