AUTONOMY AS A FOUNDATION FOR A THEORY OF FREE SPEECH AND THE ADVERSARY ...

180 Pages·2008·0.74 MB·English

by  Cheoljoon Chang

AUTONOMY AS A FOUNDATION
FOR A THEORY OF FREE SPEECH AND THE ADVERSARY SYSTEM

A Dissertation
Presented to the Faculty of the Graduate School
of Cornell University
In Partial Fulfillment of the Requirements for the Degree of
Doctor of the Science of Law

by
Cheoljoon Chang
May 2008
© 2008 Cheoljoon Chang
AUTONOMY AS A FOUNDATION
FOR A THEORY OF FREE SPEECH AND THE ADVERSARY SYSTEM

Cheoljoon Chang, J.S.D.
Cornell University 2008

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.
BIOGRAPHICAL SKETCH

Cheoljoon Chang was born in Gwang-ju, South Korea in 1975. He graduated from
Yonsei University majoring law in 1998. After obtaining master’s degree in the same
University in 2000, He served for the military. He went to America in fall 2004 in
order to study at Cornell Law School. His LL.M. degree allowed him to study further
in J.S.D. course at Cornell. His academic concern is constitutional law, law governing
lawyers, and jurisprudence.
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To My Parents
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ACKNOWLEDGMENTS

First of all, I would like to express my gratitude to Cornell Law School for its
academic and financial support. My most sincere thanks go to Professor W. Bradley
Wendel, who has been a wonderful adviser. His kind encouragement, willing
assistance, and useful comments helped bring this project to a successful conclusion.
And I wish to record my appreciation to other special committee members, Professor
Mitchel Lasser and Bernadette Meyler, without whose help and support I would never
have been able to complete my dissertation. I was extremely fortunate to study
constitutional law, legal ethics, jurisprudence with these three great scholars at Cornell.
My special thanks go to Assistant Dean of Law School Charles Cramton who
offered valuable support. I am also indebted to the closest friends Christopher Ahn and
Thomas McSweeney. Without their help, my study would not be successful. And I
especially wish to express my gratitude to my teachers, Professor Jae Won Kim and
Jongcheol Kim who always give me tremendous support. What I learned, in my
master’s course, from Professor Jeong Oh Kim, Young Huh, and Sung Tae Kim was
useful foundation for study at Cornell. I am grateful to them.
As always, my family have protected me. I will never forget their sacrifice and
prayer. Finally, I dedicate this dissertation to my parents who are my biggest supporter
in the world.
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TABLE OF CONTENTS

Biographical Sketch iii
Dedication iv
Acknowledgements v

Chapter 1 Introduction 1
1.1 Overview 1
1.2 Definitions and Jurisprudential Background 11

Chapter 2 The Adversary System and Liberal Democracy Theory 15
2.1 Introduction 15
2.2 Definition 16
2.3 History of the American Adversary System 20
2.4 Value of the Adversary System 24
2.4.1 Truth 25
2.4.2 Legal Right 27
2.4.3 Autonomy 30
2.4.3.1 Relationship between Lawyer and Client 31
2.4.3.2 Scope of Lawyer’s Behavior 37
2.4.3.3 Autonomy and Paternalism 40
2.4.3.4 Paternalism and Liberalism 50
2.4.3.5 Instant Summary 56
2.5 Adversary System and Liberal Democracy Theory 56
2.5.1 Conceptual Aspect 57
2.5.2 Empirical Aspect 62
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2.5.3 Instant Summary 65
2.6 Chapter Summary 65

Chapter 3 Freedom of Speech and Its Values 67
3.1 Introduction-Similarity with the Adversary System 67
3.2 Relationship between the Adversary System and Freedom of Speech 71
3.3 History of the First Amendment 74
3.4 Value of Free Speech 78
3.4.1 Truth 81
3.4.1.1 Liberalness 81
3.4.1.2 Truth-finding in the Adversary System and Freedom of
Speech 84
3.4.2 Self-realization, Autonomy, Individual Rights, and Liberalism 87
3.4.2.1 Utilitarian Perspective 89
3.4.2.2 Right-based Perspective 93
3.4.2.3 Democratic Perspective 103
3.4.2.4 Instant Summary 114
3.5 Chapter Summary 115

Chapter 4 Autonomy in Democracy: As Common Value of Free Speech and the
Adversary System 116
4.1 Introduction 116
4.2 Autonomy, Free Speech, and Democracy 119
4.2.1 Autonomy in Democracy 120
4.2.2 Autonomy and Free Speech 123
4.2.2.1 Individualistic Perspective 123
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4.2.2.2 Collectivistic Perspective 131
4.2.2.3 Individualistic Restraint on Autonomy 138
4.2.2.4 Raz’s Perfectionist Liberalism 143
4.2.3 Instant Summary 145
4.3 The Adversary System and Autonomy 146
4.4 Chapter Summary 151

Chapter 5 Conclusion 153

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