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Comparative Law as Transnational LawA Decade of the German Law Journal$
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Russel A. Miller and Peer C. Zumbansen

Print publication date: 2011

Print ISBN-13: 9780199795208

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199795208.001.0001

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Protego et obligo †

Protego et obligo †

Afghanistan and the Paradox of Sovereignty

(p.291) 22 Protego et obligo
Comparative Law as Transnational Law

Michael Bothe

Andreas Fischer-Lescano

Oxford University Press

This chapter provides an invaluable foundation for understanding the ongoing Afghanistan conflict with a survey of the realities of law and governance in the region, both before but especially after the toppling of the Taliban regime by the American-led military campaign known as Operation Enduring Freedom. It presents a critique of the “limitations placed upon [the newly summoned Afghan polity] by global governance.” The new Afghanistan is seen as a problematic test case for a series of interrelated jurisprudential phenomena that challenge traditional notions of inviolable sovereignty with unexamined risks: the rethinking of sovereignty from a post-modern perspective; global constitutionalism; autopoietic law; and the entrenchment of privileged and disadvantaged spheres in the global community. The chapter argues that international law is trapped in the dialectic between apology and utopia and, in the shadow of the war on terror, and pleads for a “rethinking of sovereignty”.

Keywords:   law, governance, Afghanistan, United States, sovereignty, jurisprudence, international law

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