My primary field is law; and I always tread lightly and respectfully as I engage with Hollenbach on the terrain of theology or even that of moral philosophy and ethics in which he has been a major thinker for many years. But I also find many of his insights deeply inspirational and clarifying on legal turf: fertile ground for the understanding and further development of legal and human rights concepts.
This aspirational convergence between Hollenbach’s work and that of a law professor/human rights-immigration lawyer implicates a particular view of the nature of law in general and human rights specifically. Law might be most simply understood in one sense as the rules of the road that a particular society makes by walking, as the poet Machado once famously intoned. How we build the roads in those rough tracks are fundamentally problems of politics and law, which are not hermetically sealed, discreet categories as some think, but inevitably influence each other in dynamic, dialogical ways (the term politico-legal helps to remind of this point). Hollenbach’s work, I believe, points us in sound ethical, moral, and politico-legal directions. This is also true, I should emphasize, for those who may not share all his particular religious convictions and assumptions. His work directs our attention to how we should begin and continue walking along some of the most difficult terrain of our times, offering potential legal ways through our “divided world.”
I will offer some brief, specific examples of how this theory/praxis dynamic has actually worked in legal contexts (I have written about these at some length in other venues in 2021 and 2022). But let me begin with law and rights. One can, of course, view law in many ways. The most basic divide is that between a view of law as simply a system of rules crafted by a sovereign versus a model of law and rights seen more in terms of legitimacy, reflective of values, always subject to revision through inevitable, continuous societal dialogue in various forms. The former tends to be rigid, brittle, and judgmental. The latter is much more nuanced and complex, and more generally normative as it embodies deep values such as equality, anti-discrimination, proportionality, anti-arbitrariness, bounded discretion, and mercy.
With apologies for brevity and over-simplification, I would note here that this divide is nowhere more important that in the human rights arena in regard to the rights of migrants, where one encounters such formulations as Seyla Benhabib’s “rights of others,” to which Hollenbach refers in his book with approval, which I share. In migration settings in particular one often encounters binary, simplistic invocations of law as a justification for harsh enforcement policies: “They broke the law, period!” or “What part of ‘illegal’ do you not understand?” It is in response to such ostensibly legal assertions that the need for a more nuanced view of the law is most apparent and, indeed, this is where Hollenbach’s work is particularly salient. It is clear in the realm of migration that, as Hollenbach puts it, one sees “the deeply harmful consequences of dividing the human community into ‘us’ and ‘them’” (3).
I would thus echo and support Hollenbach’s point that Catholic reflection on human rights is very much alive today. It has had extremely important positive influences on the continuing evolution of human rights, particularly the rights of migrants (Hollenbach 2024, 1). This is true both as a matter of theory—as some of the recent proclamations of Pope Francis have made abundantly clear—but also in practice, among shelters and refugee and migrant support projects throughout the world, and innovative cross-border initiatives with which I am familiar in the Southern United States and in Mexico (as Hollenbach notes, there are similar initiatives undertaken by other major religious traditions, as well).
Hollenbach calls a kind of appeal to human dignity as a “Kantian moment,” that is, that no person should be a viewed as a means to be used for some other purpose (19). As he highlights, dignity is invoked in a similar way in the Universal Declaration of Human Rights, affirming a global community to which all human beings belong. But it is also true that both the Universal Declaration and the subsequent more formal international human rights legal corpus have not dealt effectively with the consequences of the current form of the nation state, the dominant understandings of state sovereignty and the dichotomy between the categories of citizen and non-citizen which have led to tragic consequences for untold millions of desperate migrants for many years in Mexico, in the southern deserts of the United States, in the Mediterranean, in Sudan, and on and on. Human rights law generally recognizes a right to leave one’s country and refugee law mandates certain specific rights to be protected as a refugee, for those who fit into a set of rather specific categories, but a basic human right to enter another country or even a temporary right to safe haven are very much still works in progress, if not regress (Hollenbach 2024, 19).
Hollenbach’s recitation of Margaret Farley’s idea of “relationality” is particularly useful in this context. As he notes, one human being is a kind of ought in the face of another. One person’s capacity to form bonds of relationship with others calls for acknowledgment and support through the concern of others. This leads to a much more cosmopolitan vision of a genuine moral community. Though reasonable minds may differ as to how robust a cosmopolitan regime is ideal, and how any cosmopolitan vision should relate to the legitimate projects of “self-determination” of a “people” and of democracy, one can see positive practical consequences to this view. Consider, for example, the case of a French farmer, Cedric Herrou, who gave aid to migrants and successfully defended his allegedly criminal action as protected by “fraternity.” He invoked this not only as a moral or religious principle, but as a constitutional principle, ultimately successfully in the French legal system. As Hollenbach notes and as Pope Francis has elaborated upon in recent years, “The dignity of the person can be achieved only when persons enter into fraternity and community with each other. State borders cannot override this” (Hollenbach 2024, 27).
Hollenbach usefully elaborates upon these points in Chapter 4 in the context of dignity as solidarity. Here the relational understanding of human rights is expanded in important ways to be seen as “genuinely universal.” This, too, has been particularly important in recent years in some specific contexts. As rescue ships have picked up migrants in the Mediterranean, ship captains have faced criminal prosecution for what they ironically often refer to as “crimes of solidarity.” Their challenges to criminal prosecutions have been substantially buttressed—and in some cases have been successful—due to invocations of solidarity as a transcendent normative principle that must override more parsimonious views of law that criminalize entering ports without permission. As Hollenbach elaborates, freedom and solidarity are thus “interconnected and mutually dependent” (140). This means that justice requires the inclusion of those who are excluded from the benefits of global markets and assistance to those negatively affected by these markets. This surely points, as he notes, to a broadening of the rather narrow category of refugees to include a much broader array of people in need of welcome. Indeed, it also implies a much broader view of law itself.
In Part 4, Hollenbach notes that the movement of people across national borders is one of the principal political and moral challenges of our time. I completely agree, and I also agree that Catholic tradition has played and continues to play an important role in thinking about the nature of borders and what rights people to whom he refers as “the displaced” ought to have. For those of us who labor in these realms—in the air and on the ground, so to speak—and who see the intertwined need for both better theory and better practice, one can think of no guides for structuring our thought that are more useful, uplifting, and fertile than the work of David Hollenbach.
