Needham Freedman Aff
| Tournament | Round | Opponent | Judge | Cites | Round Report | Open Source | Edit/Delete |
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| Yale University Invitational 2021 | 1 | Strake Jesuit NW | Henry Eberhart |
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| Tournament | Round | Report |
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| Yale University Invitational 2021 | 1 | Opponent: Strake Jesuit NW | Judge: Henry Eberhart AC = cap |
To modify or delete round reports, edit the associated round.
Cites
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Adopting a Marxist perspective helps us resist alienation and solve issues of inequalitiesTournament: Yale University Invitational 2021 | Round: 1 | Opponent: Strake Jesuit NW | Judge: Henry Eberhart We need to try to grasp the complexities of the world that we find ourselves in, in global capitalism today, so that we can then try to find a way to break free from it all, in order to create a better, a kinder and a fairer world. If one took a different position, and argued that global capitalism was a very good system, and that we just need to work through the various issues and dilemmas, one would quickly come up against an insurmountable number of problems (as indeed people do) in regard to issues such as IPRs, moral and humane issues, the public service ethos and the balance in copyright. A Marxist analysis is complex, but it seeks to explain and solve many of these real problems and contradictions, whilst also enabling us to face up to these contradictions. We need a theoretical analysis that helps us to understand and explain the system that we find ourselves in – global capitalism, with all its injustice, inequality, cruelty, suffering and death – and an Open Marxist theoretical analysis provides us with this, in my view. Once we have this understanding, we can then endeavour to create a better, kinder and a fairer social, economic and political system – one that is based on human wants and needs and one that will enable humans to find self- expression and fulfilment, rather than a system that is based on the exploitation, alienation and objectification of labour, value-creation and the never-ending drive to increase profit margins. | 9/18/21 |
Justice is an abstract idea that is solely dependent on the mode of production at a given timeTournament: Yale University Invitational 2021 | Round: 1 | Opponent: Strake Jesuit NW | Judge: Henry Eberhart 2.2 Marx on Morality and Justice Marx holds that not only will legal and political institutions reflect the material life of humans, but so too will beliefs and ideas. If the beliefs of a given society reflect the mode of production, the only way to understand those ideas will be to examine them in relation to their 18 genesis and development. Additionally, it follows that if ideas are tied to a given mode of production, moral ideas too will reflect, in one way or another, a given mode of production. Think, for example, of values associated with different epochs. Marx, in a criticism of historians who detach the ruling ideas of an era from their material basis, points out that ruling ideas change. Thus honor and loyalty were the values of the aristocracy while freedom and equality are the values of bourgeois society. In later years, Engels declared that “we reject every attempt to impose on us any moral dogma whatsoever as eternal, ultimate and forever immutable ethical law on the pretext that morality has its permanent principles which stand above history” (726). He continues morality has always been class morality; it has either justified the domination and the interests of the ruling class, or, ever since the oppressed class became powerful enough, it has represented its indignation against this domination. (726) Therefore, for Marx and Engels, just as social relations and social institutions are always in flux, the ideas that arise out of material existence are also in flux. Now, how does this affect justice? The answer is that justice is affected in precisely the same way; however, the term justice can be understood in both a legal and a moral sense. Given that, for Marx, “every form of production creates its own legal relations, form of government, etc.,” it follows that justice, the concept typically used to describe legal phenomena, is itself an idea that arises in, and is conditioned by, the existing mode of production (Gr; 226). A given era, according to Marx’s method, will contain a social totality of needs, productive forces, and social, economic, and political relations that determine the overall form of social organization. Part of this overall form is the legal and political apparatus that both grows out of, and helps to develop and fortify, the rules and practices of society. These developments, rules, and regulations determine, in one sense, what is just. Consequently, justice, like morality, can have no transhistorical or 19 transsocietal determinate content — it is determinable at a given moment, but never abstractly determinate. Thus, that it is just to enslave a large number of human beings at one moment and that it is unjust to do so at another lends support to Marx’s view: namely, justice can be determinate and identifiable at any given moment, but it does not retain the same determinacy from era to era, place to place. Appeals to abstract justice, then, are historically-contextualized expressions misrepresented as universal. Allen Wood (1972) is helpful on this point. On Wood’s reading of Marx, ‘just’ actions are those “transactions that fit the prevailing mode of production, they serve a purpose relative to it” (1972, 256). What is just, then, is a matter of what maintains the existence and reproduction of the social totality as a whole. Again, the legitimacy of Fugitive Slave Act of 1850 expressed the idea that society cannot reproduce itself (in its current form) if slave labor is unenforceable. To adopt a juridical view, then, entails that one takes these legal and political determinations as if they do not presuppose a given social totality composed of interrelated and interworking parts. As Wood explains, such a view “is essentially one-sided, and to adopt it as the fundamental standpoint from which to judge all social reality is to adopt a distorted conception of that reality” (1972, 255). Again, the juridical view is a distortion precisely because in taking some particular notion of justice as the primary metric of a given society, one neglects the way in which ideas about justice arise, not to mention the way in which societies function so as to reproduce themselves. The juridical view confuses a context-dependent idea for an abstract one. Furthermore, the juridical view is equally problematic for its neglect of society as a totality that contains needs, production, relations, and ideas which condition and are conditioned 20 by each other. Whatever justice means at a given historical moment must be understood in its broader social and political context. So long as identifying principles of justice is the central concern, developing a proper understanding of how so-called injustices arise, for what reasons, in what way, as a result of what needs, production, and relations of power, etc., will be secondary and potentially, if not often, overlooked. Therefore, because ‘justice-seeking’ and ‘justice adjudicating’ ignore the centrality of civil society and the interdependency of social phenomena within a given mode of production, we can see how nonideal theory adopts a flawed view of society. As Wood explains: Abstracted from a concrete historical context, all formal philosophical principles of justice are empty and useless; when applied to such a context, they are misleading and distorting, since they encourage us to treat the concrete context of an act or institution as accidental, inessential, a mere occasion for the pure rational form to manifest itself. (1972, 257) In other words, to use justice as nonideal theory does — as an abstract, pure, moral, or metaphysical concept — is to misunderstand what justice is. Therefore, the nonideal theorist’s employment of justice, like their ideal theorist counterparts’, is simply confused. Stated differently, abstract justice, from the Marxian understanding of society as a totality of interdependent moments, is a contradiction in terms. | 9/18/21 |
Since justice is historically-contextualized, non-ideal theorys belief that justice is a moral ideal is inherently flawedTournament: Yale University Invitational 2021 | Round: 1 | Opponent: Strake Jesuit NW | Judge: Henry Eberhart | 9/18/21 |
The exclusion of human rights from the copyrights clause of the TRIPS agreement alienates those in developing countriesTournament: Yale University Invitational 2021 | Round: 1 | Opponent: Strake Jesuit NW | Judge: Henry Eberhart TRIPS and Large Corporations The power of large corporations and rich countries in the developed world and the lack of democracy at the WTO are illustrated clearly through TRIPS. The developed countries typically benefit at the expense of the developing countries. The Pharmaceutical Research and Manufacturers of America (PhRMA), is probably the world’s most powerful industrial lobby and in many ways it shapes the TRIPS agenda. As Watkins says: Dictated by the US pharmaceutical industry, and driven through by threats of US trade sanctions, the agreement was opposed by virtually every developing country in the Uruguay Round. (Watkins, 2003, p. 32) Furthermore, ‘TRIPS enshrines the US patent law in the multilateral trade system’ (Watkins, 2003, p. 32). It forces developing countries to adopt the standards of the rich countries in the west. Over 90 of patents for new technologies are held by corporations in rich countries. There are two rights in copyright – moral and economic rights. Ideally, both of these should be included in all copyright legislation, agreements, directives and conventions, although in reality moral rights are often excluded. This, I would argue, is because of the drive embedded within capitalism itself, where entrepreneurial drives and trade are bound to take precedence over moral and humane considerations. Moral rights have been excluded from the copyright section of TRIPS. Most of the Berne Convention is included in TRIPS apart from moral rights. The WTO says that: Members do not have rights or obligations under the TRIPS Agreement in respect of the rights conferred under Article 6 bis of that Convention, i.e. the moral rights (the right to claim authorship and to object to any derogatory action in relation to a work, which would be prejudicial to the author’s honour of reputation), or of the rights derived therefrom. (WTO, und.a, p. 4) Thus, a very important part of the Berne Convention that was established over 100 years ago has been excluded from the TRIPS Agreement. Even where moral rights are included in copyright legislation, it can sometimes be difficult to enforce, there are often waiver facilities, and it can be difficult for creators to obtain their appropriate moral rights. But if it is not there at all, then creators really are at a serious disadvantage. Instead, the emphasis in TRIPS is on economic rights and trade. TRIPS and Traditional Knowledge TRIPS does not refer to traditional knowledge (TK) directly, but clearly TRIPS is likely to impact on TK. Drahos and Braithwaite refer to patent law and TRIPS, saying that: Patent law ... has become one of the main mechanisms by which public knowledge assets have been privatized. TRIPS itself is an outcome of this process of privatization of the intellectual commons. (Drahos and Braithwaite, 2002, p. 150) They draw attention to the fact that the ‘intellectual commons’, which includes TK, is being patented and privatised, and then traded through TRIPS. It should be noted that most people and organisations, such as NGOs that look at, and are concerned about, patents in TRIPS, examine areas other than information, education and libraries. They focus, in particular, on areas such as drugs, genes and the patenting of life-forms. Thus, I am exploring a very new, undeveloped area here. Given that TRIPS is about transforming IPRs into international tradable commodities, TK for the benefit of the local, indigenous population is under threat. TK and IPR Issues in the Developing World TK cannot be encapsulated in copyright, which would provide copyright protection, unless it is in a tangible form. This means that local indigenous communities in the developing world are very vulnerable and can be exploited. Many have been gathering their knowledge for hundreds of years. However, most of these people would not have the skills and capabilities to be able to write down what they know, and to transform it into a tangible form. This makes it easy for large companies to come along and appropriate this knowledge, patent it, turn it into an IPR and make money out of it, without giving due recompense to the indigenous population. As Utkarsh (2003, p. 190) says, with globalisation: ‘knowledge and other public goods are rapidly being appropriated, transformed and marketed by commercial concerns, without any benefit being shared with the original producers’. Western law also often treats TK as part of the public domain, and thus freely available to everyone. This is another problem. This is partly because of the culture embedded within the indigenous community itself, with its emphasis on sharing and the community spirit. Many people in the developing world see TK as being part of Nature itself, and there are also religious connotations. Thus, many would be against any notion of people owning, or seeming to own, any of this knowledge, or turning it into any form of IPR. Meanwhile, Aguilar argues that patents and other IPRs are not really suitable for protecting TK for both practical and cultural reasons. Instead, there is a need to look for viable alternatives, otherwise those in the indigenous communities will become the ‘victims of knowledge piracy’ (Aguilar, 2003, p. 181). He argues that a sui generis system tied to the framework that is provided by the Convention on Biological Diversity (CBD) and in Article 27.3(b) of TRIPS is urgently needed. TRIPS and the Developing World What are the implications of TRIPS for the developing world in general? Many NGOs argue that TRIPS is largely disadvantageous for the developing world. This is for a number of reasons. Firstly, the strong IPRs systems and practices that are being established in WTO member countries through TRIPS will give monopoly rights to many privately-run research organisations and to various powerful private corporations. Secondly, TRIPS makes it mandatory for WTO member countries to patent some categories of life forms and other living processes. This has raised various ethical, religious and environmental questions. The third reason is the concern that TRIPS favours large private companies and modern technology, and the fourth is the misappropriation of much TK and the lack of concern about the rights of local communities, indigenous populations and farmers, and the important role that they have played in developing this TK. Patents and TRIPS in the Developing World The TRIPS patent system was established in the joint statement presented to the GATT Secretariat, in June 1988 by the Intellectual Property Committee (IPC) of the USA and industry associations of Japan and Europe. The IPC is a coalition of 13 major US corporations which aims to ensure that TRIPS works to its advantage. The members of IPC include corporations like Hewlett Packard, General Motors, IBM, Rockwell and Warner. Patents laws have existed in various developing countries for over 100 years. Embedded in these patent laws was some desire to help the indigenous populations. But this is now threatened by TRIPS because of the lack of a democratic process. Shiva (2001), for example, refers to various patent systems that have evolved through multinational corporations and have been pushed by governments in the developed world through TRIPS, and how this can damage the democratic process of nation states. Fundamentally, it will be impossible to implement TRIPS in a way that will significantly benefit the developing world, because of the inherent inequalities and contradictions that are built into the very fabric of global capitalism itself. Furthermore, the drives of capital are infinite; it will never be satisfied. So, there will never come a point where it will be decided that the inequalities need to be lessened in any fundamental way. Instead, TRIPS, as a tool which aids the furtherance of global capitalism, is likely to increase the inequalities. Furthermore, inequalities and poverty will only ever be lessened (and largely on a temporary basis) when pressure is placed on those in positions of power. In regard to TRIPS this rests on putting pressure on the WTO through organisations such as the Third World Network and various NGOs in order to soften some of the most worrying of the implications of TRIPS for the poor and those in the developing world. However, capitalism is a battlefield upon which various compromises are and can only ever be made, but it can never ultimately be for the benefit of the labourer and the poor. To change the situation on a permanent basis, we need to terminate capitalism and replace it with socialism and eventually with communism in my opinion. | 9/18/21 |
Open Source
| Filename | Date | Uploaded By | Delete |
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9/18/21 | lgfreedman0420@gmailcom |
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