The Nonhuman Rights Project, under the leadership of Steven Wise, has sought a writ of habeas corpus on behalf of Happy, the elephant, who lives in the Bronx Zoo in New York City. Why? According to the New York Post, Wise said that his group “is moving onto elephants because it ‘ran out of chimpanzees in the state of New York.'”
Curiously, the case was filed in Orleans County, on the shore of Lake Ontario. The county’s largest town, Albion, had a population of 8,468 as of the last census. Why there? Because, Wise told the Post, “local courts aren’t amenable to his arguments.” Apparently this is consistent with New York’s statutes on venue in habeas corpus cases. We’ll see how the judge in Albion feels about Wise bringing the circus, or the zoo, to his or her courtroom.
I’m not going to predict the outcome of the case. New York has sixty-two counties, and if the NhRP can seek habeas on behalf of animals at the Bronx Zoo in each of them, who is to say that some judge won’t get a little exuberant. I’ve given reasons before for thinking that the whole project of treating animals as persons for habeas corpus purposes is foolish. But let me make a new point here, one not addressed to the philosophical question of personhood but to the question of what the law is for. After all, you might read a lot of twentieth and twenty-first century philosophy of mind and wonder whether human beings are persons in the philosophical sense!
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 who is the law for. It’s for us.
None of this is to say that the law doesn’t or should require us to treat animals in certain ways. Of course it should. But that’s not because elephants are persons entitled to habeas corpus; it’s because we’ve made rules for ourselves about how we must treat animals. And when someone breaks the rules, we enforce them—we don’t pretend the elephants are enforcing them.
If we want to change the rules, we discuss it and try to persuade each other. We don’t try to preempt discussion by pretending that the elephant has a right that requires one’s preferred outcome. After all, who is Steve Wise, and why his view of elephant welfare more sensible than the zookeepers and veterinarians who run the Bronx Zoo? “The elephant has a right to my preferred outcome.” Really?