Let me stipulate at the beginning that elephants are magnificent animals who have been treated badly by us human beings for a long time. We have hunted them for ivory, reduced their habitat, and mistreated them in captivity in the circus and in some zoos. I say some zoos because Happy, the elephant at the center of the elephant habeas case, is at the Bronx Zoo, and the question is whether well-meaning who haven’t been able to get their legislators or fellow citizens to agree with them that the law should require a standard of care better than what the Bronx Zoo is offering, or should forbid zoos from keeping elephants altogether, should be able to pretend that the elephant himself is making a claim and asserting rights that he, the elephant, has, so that a court can be persuaded to do what the democratic process would not do. Will the elephant ever disagree with his lawyers, or tell them that they have misunderstood his goals and desires? Of course not. Would an elephant, if found entitled to petition for a writ of habeas corpus, be set free—freedom from confinement is the essence of habeas corpus— to roam the State of New York as she wishes? Of course not. In yesterday’s decision in Nonhuman Rights Project v. Bremeny (N.Y. 2022), the New York Court of Appeals put a no doubt temporary end to the quixotic and self-defeating campaign by the Nonhuman Rights Project and its leader, Steven Wise, to find some American court somewhere that would declare that elephants are persons.
I have a pretty good archive of posts about the elephant habeas cases and other “animal rights” litigation, and I am not going to repeat everything I’ve written about it. Let’s see what the New York court did, because its reasoning matches my reasoning pretty well. The court began with the obvious: “Nonhuman animals are not, and never have been, considered ‘persons’ with a right to ‘liberty’ under New York law.” (I didn’t know this, but apparently in New York, by statute, the state “owns all fish, game, wildlife, shellfish, crustacea and protected insects in the state, except those legally acquired and held in private ownership”). The court rejected the view that the history of habeas corpus, which has been extended over time to abused women and children and slaves, shows that the writ ought to be extended to non-human animals, describing the argument as an “odious comparison with concerning implications.” The court observed that even the people claiming to speak on behalf of Happy weren’t asking for Happy to be set free, but rather, to be confined in a setting that they thought better. Finally, the court noted that we ordinarily think of moral persons as beings that can have duties as well as rights, but no one thinks that’s true of elephants or any other non-human animals. “Unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman animals cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.”
Many people have pointed out that the law treats corporations as legal persons as a kind of “gotcha.” What kind of a monster would say that a corporation is a person but an elephant is not? The court’s main answer to this is exactly right: “Corporations are simply legal constructs through which human beings act.” I’ve written about this point at greater length and encourage you to check out my post from 2018 on personhood.
Why do I feel strongly about the case? Why do I call Mr. Wise’ project self-defeating? Because if animal welfare is the goal, then imagine how much progress Mr. Wise and his project might have made by lobbying for new and better laws rather than trying to use the courts to sidestep the democratic process and the necessity of having to persuade one’s fellow citizens. The effort to get a court to declare that “animals are persons” is not ultimately about the animals, but about their self-proclaimed representatives. How can I, the lawyer, get my way when it comes to the treatment of a non-human animal? I can persuade a judge to call my preferred policy the animal’s right, and I can persuade the judge that I, uniquely, know what the animal wants and can represent its interest in asserting its right, putting an end to the political discussion. Whether the animal wants what I say it wants is beside the point.
At the heart of the matter is a basic misunderstanding about who the law is for. We see this in the similarly misguided efforts abroad to say that rivers or forests have rights. The motivation for these efforts is valid: our natural environment is in trouble, and we need to save it. But we need to save it for us. The rivers and forests are just there and don’t have their own interest in being saved:
If law, or maybe Law, is a social phenomenon, then it’s for us (that is, us humans), and is meaningful to us and only to us. It’s a big part of the way we organize ourselves. Other animals have other systems. Chimpanzees apparently have interesting and sophisticated ways of living together. It just seems like a very basic mistake to treat nonhumans as subjects of the law rather than objects of the law. If you say, “human infants, the insane, etc. lack capacity just as a chimpanzee lacks capacity,” I would answer, “human infants, the insane, etc., are part of humans society in a way that chimpanzees are not.” No doubt intrepid primatologists can insert themselves into a chimpanzee society and participate in it in some way for purposes of study (because unlike chimpanzees, humans are wicked smart and can do things like anthropology and primatology). But that’s for the purpose of study, not for the purpose of leading a life. And a chimpanzee cannot, by its nature, be a part of human society. That’s not to say there’s something wrong or deficient about chimpanzees. That’s just how they are. To repeat, this isn’t a point about the philosophical question of what constitutes a person; it’s a point about whom is the law for. It’s for us.
In my 2018 post, I suggested that the deeper we think about it, the less clear it is that we human beings always embody the criteria of moral agency and personal identity that we say are essential to personhood. It seems to me that if we really focused on living up to the obligations of moral personhood, we would treat nonhuman animals a lot better than we do.