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표현의 자유에 대한 개인주의적 접근방법과 공익적 접근방법 -반론권에 관한 미 연방대법원 판례를 통해 바라본 헌법 이론적,철학적 지형-
장철준 ( Cheol Joon Chang ) 세계헌법학회 한국학회 2008 世界憲法硏究 Vol.14 No.3
The absolute protection theory of freedom of speech in American constitutional law is justified by the value of individual autonomy. Traditional liberal individualism, which promotes autonomy as a foremost theoretical target, prohibits the government from constraining free speech over the process of public deliberation for the democratic collective self-decision making in the name of protecting autonomy. Autonomy, in this context, means being free of paternalistic external constraints. Linked with the development of communitarianism, the collectivist theory of free speech, in which public interests are considered highly, has been shown. The theory criticize the liberal individualist approach to free speech for that autonomy, in this approach, is used as an excuse of existing unequal distribution of information which is the fundamental source of the public deliberation. The strategical method of the collectivist theory to attack the individualist perspective, therefore, is concentrating on deconstructing this autonomy pretext. A philosophical relationship between autonomy and liberty, which was studied by Gerald Dworkin and many scholars, reveals the new possibility that autonomy can be promoted by the paternalistic intervention of liberty. In addition, Joseph Raz`s perfectionist liberalism, in which the government can ban immoral choices for promoting autonomy, leads a new understanding of liberalism instead of the traditional individualistic liberalism in the area of freedom of speech. Those works can be meaningful especially in the Korean circumstance where the collectivist understanding of fundamental rights has relatively prevailed so far.