State Checks Framework
The value criterion is...ensuring appropriate checks on state power.
Here are some of the best justifications for a state checks framework.
Freedom is the foundation of all theories: 1. All action, even arguing, requires us to be free. Acting to deny that freedom is a contradiction, so we must accept freedom as an axiomatic principle.
2. People should be free since it allows them to choose moral principles for themselves. Restricting this choice creates a risk of moral harm since it prevents people from achieving their own goals which they judge to be able, and so requires proactive justification.
Thus, laws must be created in a way that fairly accepts the freedom of citizens – this mandates appropriate checks on state power
Mueller 96 Dennis Mueller, Professor of Economics at the University of Vienna, explains in the Oxford University Press 1996: Professor of Economics (Emeritus) at the University of Vienna. CONSTITUTIONAL DEMOCRACY. Oxford University Press. New York, NY. 1996
The specter has been raised that a government once created will turn upon its creators. This danger is most conspicuous in Thomas Hobbes's alternative to anarchy--transfer all authority to an absolute monarch--but is present in all solutions that rely on a government, if those in government are even partly motivated by self-interest. In creating a constitutional government the citizens face a fundamental "principal-agent" problem. Ideally, they would make all decisions collectively and unanimously, just as they choose the constitution collectively and unanimously, but such a collective decision rule is impractical. While decision-making costs are economized by choosing agents to make decisions for the citizens, opportunistic behavior by the agents may lead to outcomes that do not advance citizen interests to the maximum degree possible. In extreme cases the agents may claim most or all of the gains from social cooperation.¶ The Founding Fathers of the United States sought to mitigate this principal-agent problem through the "checks and balances" built into the Constitution. But these checks and balances have not prevented the government from becoming a Leviathan, and they now produce deadlocks that hinder it from efficiently providing those goods and services that everyone expects from government.¶ Any society that creates a set of democratic institutions must confront the Sorcerer's Apprentice Problem. How can government be given sufficient authority to act effectively on the citizens' behalf to advance their interests, and at the same time ensure that those in government or with influence over it do not use this freedom and authority to advance their interests at the rest of the citizenry's expense? In effect, once government is created, the citizens become involved in two sorts of prisoners' dilemmas, one among themselves, which government is supposed to help solve, and one between the citizens and the government, or, more accurately, the citizens in the government. Obviously, the government cannot be relied upon to resolve the second prisoners' dilemma. It is here that a constitution can play a crucial role. If the citizens create the government, and do so by writing a constitution, then this constitution must define institutions and create incentives so that all parties to the constitutional contract, including those who will someday have the authority to enforce it, abide by it.
The standard is ensuring appropriate checks on state power.
1. It’s a prerequisite to any other theory since without checks, there would be no guarantee the state would follow any other theory.
2. Specific to the obligations of the state since legal documents require that the state respect the wills of citizens. Actor specificity outweighs all other comparison since goods or right actions are always contextual to specific moral agents
Presumed consent makes us vulnerable to totalitarian abuse. It creates a line-drawing problem where our bodily autonomy becomes subservient to the wishes of the state.
Shearman 14 (Kirstie, University of Southampton, School of Law) “Opting out of Organ Donation: A Legal and Ethical Analysis” accessed via Academia.edu, Last date cited Feb 24, 2014 AT
The expression of an interest in how our bodies are treated after we die commands respect; it places deontological limits on what others can or cannot do to our bodies. From a political philosophy perspective, state ownership is not desirable. Drawing from Kantian ethics, Nozick writes that “individuals are ends and not merely means; they may not be sacrificed or used for the achieving of other ends without their consent” . Individuals have rights and should not be used as a means of achieving any given aim. State ownership of cadavers is too interventionist to sit comfortably alongside the respected principles of medical law. Whilst it is clear that the issue of ownership in the body needs settling, it is submitted that the introduction of an opt out scheme will answer this question, but in a far from satisfactory manner; if the state can provide consent on our behalf, this is surely exercising ownership rights over our bodies. This view was reflected in the media when Gordon Brown publicly voiced his support for organ donation opt out; one commentator wrote: “Gordon Brown has appropriated just about everything we own, so it is no surprise that he is now trying to nationalise our bodies...Presumed consent would be the ultimate victory of the New Labour totalitarians: the acknowledgement that they own us down to the last sinew and tissue. It must be rejected.” An opt out scheme necessarily entails making individuals vulnerable to abuse by political parties with totalitarian ideologies and no respect for the individual. It is difficult to imagine where the line can be drawn. If dead bodies have no moral status, and others’ feelings about dead bodies are accorded only a weak priority trumped entirely by any societal benefit to living people, is conscription the next logical step in the future? Can this logic simultaneously justify presumed consent for the retention of organs for research – an equally important and ethically acceptable aim, with potential life saving properties? Jacob suggests presumed consent is dangerous in this regard; it implies an underlying wish for society to be passive, which could lead to other areas of law also hindering individual autonomy. Furthermore, it is impossible to consider organ transplantation a ‘donation’ if we are presumed to consent; this removes the impetus for giving and results in taking organs from those who have been presumed to consent. As Warner questions – if we do not own our bodies, what can we be said to truly own?
[This framework originally and generously contributed by PV Peninsula.]