Happy the elephant was denied rights designed for humans – but the legal definition of ‘person’ is still evolving (New York)
Happy the elephant was denied rights designed for humans – but the legal
definition of ‘person’ is still evolving (New York)
Joshua Jowitt, The Conversation
January 6, 2021
See link
https://theconversation.com/happy-the-elephant-was-denied-rights-designed-for-humans-but-the-legal-definition-of-person-is-still-evolving-152410
for photos.
Nobody knows how old Happy is. Sometime in the 1970s, she and six other
youngsters were taken from their family group (probably in Thailand) and
sold to an entertainment complex in California where they were forced to
perform for paying guests. Over time, Happy was separated from her kin and,
since 2006, has lived alone in conditions that experts suggest could
significantly increase her risk of arthritis, depression, bone disease and
a host of other physical and mental ailments.
A team of lawyers requested a writ of habeas corpus – a claim of unlawful
detention – on Happy’s behalf in an effort to have her rehomed. But on
December 17 2020, an appeals court in New York denied the claim. Their
reasoning was simple – Happy cannot claim legally enforceable rights under
existing law. This is because Happy is an elephant.
If Happy had been human, the courts wouldn’t have hesitated to find in her
favour, and people would consider this justified. But do we actually have
reason to think any differently now we know she is an elephant? Does
justice require different things for different species in the same
circumstances? Or, as the Nonhuman Rights Project – a civil rights
association campaigning for animal legal rights in the US – has argued on
Happy’s behalf, is a subject’s species irrelevant in considerations of
justice and legal rights?
If the Nonhuman Rights Project is correct here, then the courts need to
recognise Happy as a legal person to hear her case. This is necessary
because, according to a legal principle created by the ancient Romans but
which is still with us today, someone – or thing – needs to be recognised
as a “legal person” in order to be able to claim legal rights – and it’s a
status currently denied to non-human animals in the US.
Legal personhood shouldn’t be confused with the ordinary meaning of what it
means to be a “person”. Non-living entities such as idols, corporations or
even ships have long been recognised as legal persons in legal systems
worldwide. This means that, if non-living things have had their legal
personhood recognised in the past, there should be no conceptual problem
with recognising the legal personhood of a highly intelligent being such as
Happy.
But this would be a controversial legal shift with huge implications for
animal rights. The New York Court refused to wade into the debate and
issued a statement saying that integrating other species into legal
constructs designed for humans is a matter “better suited to the
legislative process”.
In other words, extending legal personhood needs to be fully thought
through and legislated for by Congress, not declared by the courts. In
deciding this, the appeals court concurred with several cases from across
the US that reached the same conclusion, from the whales and dolphins
denied compensation for disturbances caused by Navy sonar, to the macaque
monkey deemed not to be entitled to copyright protection for a selfie it
took.
Letting politicians instead of judges deliberate the recognition of new
legal persons might seem a sensible approach. It’s one that was recently
taken by the New Zealand parliament when it voted to recognise a river as
such. But the US Congress and other legislatures are usually reluctant to
recognise new categories of legal persons unless their hand is forced.
After all, legislatures once turned a blind eye as many human beings were
denied the status of legal persons based on their age, sexuality, religion,
gender or race. The institution of slavery relied on legal systems denying
the legal personhood of human beings, and it was the courts – most notably
the Somerset case, heard in England in 1772 – that challenged this, long
before slavery was abolished through legislation.
Legal Precedent
The problem for Happy, then, is that new legislation to benefit her is
unlikely given that the issue is considered a low priority – if it’s even
on the political radar at all. So any court presented with a case like
Happy’s must face a choice – either do nothing and maintain Happy’s
suffering, or force the legislature’s hand by following the lead of other
legal systems.
Courts in Argentina have recognised the legal personhood of Cecilia the
Chimpanzee, who was detained in similar conditions to Happy. Chucho the
Bear, also held in similar conditions, is a legal person too thanks to the
Columbian Courts. Both were granted habeas corpus relief from their
inhumane captivity as a result.
The New York courts will be confronted with this choice again. Happy’s
legal team intend to appeal, and in doing so may bring the case into the
orbit of a judge more sympathetic to this kind of activism. The last time
an animal personhood case (about chimpanzees) reached the more powerful
appellate level in New York, Judge Fahey noted that:
*The issue [of] whether a nonhuman animal has a fundamental right to
liberty protected by the writ of habeas corpus is profound and
far-reaching… Ultimately, we will not be able to ignore it. While it may be
arguable that a chimpanzee is not a person, there is no doubt that it is
not merely a thing. *
If one judge thinks this, then they may not be alone. The New York Court of
Appeal may yet acknowledge the elephant in the room and provide a happy
ending, with stronger legal rights for non-human animals across the US.
Joshua Jowitt is a lecturer in law at Newcastle University, England