Lawyers are usually accompanied by their clients when appearing in court, but at a recent virtual argument before the Appellate Division of the New York Supreme Court’s First Department, Steven Wise’s client was conspicuously absent.
Wise’s client, had she been there, would have been impossible to miss, because she is a 49-year-old Asian elephant named Happy currently living at the Bronx Zoo. And Wise, the president of the Nonhuman Rights Project, was there to argue that the court should issue a writ of habeas corpus on her behalf, in order to force the zoo to move Happy to an elephant sanctuary.
Elephants like Happy are remarkably intelligent animals. They live in complex social groups, cooperate to solve problems, recognize themselves in mirrors, use tools and even appear to mourn their dead. Happy has had more than one occasion to do the last: her longtime companion, Grumpy, was injured by other elephants and euthanized in 2002, and his replacement was euthanized due to kidney failure a few years later. Even though elephants are surprisingly intelligent and very social animals, Happy has been alone since 2006 and, according to the Nonhuman Rights Project, is expected to spend the winter in a windowless building at the zoo.
Hence the legal hearing: courts in the U.S. use writs of habeas corpus to bring a detained person, usually held in a jail or mental institution, physically before the court in order to determine if they are being held lawfully. But if the court issued a writ of habeas corpus for Happy, it would mean that she is legally a type of “person.”
At first glance, that seems laughable — but while Wise’s argument has some serious issues, it is not completely lacking in merit.
Certain non-human entities like corporations — which includes companies as well as churches and colleges — have already been granted limited types of legal personhood by the courts, allowing them to do some things a person can, like own property or purchase political ads, but not others, like vote. And Wise’s argument was limited to recognizing the legal personhood of elephants only insofar as it would to allow for them to be brought forth under a writ of habeas corpus; he was not arguing that elephants should have the right to enter into contracts or vote.
But granting Happy and therefore other elephants a kind of legal personhood is perhaps the most roundabout way of trying to get better living conditions for her and other elephants: it comes with a low probability of success, and raises a tremendous number of questions that are difficult to answer. Many elephants deserve better living conditions, but granting them any level of personhood would potentially create an enormous legal, philosophical and financial mess that might not even succeed at getting elephants better living conditions.
For instance, rights usually come with responsibilities in the legal system — and elephants have killed people, including in the U.S. If an ill-tempered elephant is recognized as having a right to liberty and enough legal agency to protest against its living conditions, then any of its actions which infringe on the rights of others (like by injuring or killing someone while trying to escape) would seem to be punishable under the law, even though there are obviously a plethora of challenges involved in putting an elephant on trial for assault and battery or manslaughter.
Another challenge that would arise with granting even limited personhood to an animal is who would have the right to represent them, and how that would be determined. While I’m sure the Nonhuman Rights Project cares deeply about elephants, its connection to Happy is unclear; there is no evidence that they have interacted with her as much as her caregivers, or even more than the average visitor to the zoo. Another group could sue to represent Happy, claiming to have a more vested interest, creating another complication the courts would have to sort out.
And, if Happy is granted the right to habeas corpus, shouldn’t she have to ask for it or at least indicate a desire for it in some way? Google Translate has a lot of new languages, but elephant is not one of them. Without an ability to state or indicate what she wants, and in the absence of human knowledge about her consciousness (or any elephant's consciousness), another organization could argue that the Nonhuman Rights Project is imposing its will upon elephants without their consent.
Or, if Happy is granted habeas corpus in order to be released to a sanctuary, another group could then ask a court to issue a writ of habeas corpus on her behalf to be released into the wild — even if that's not in her actual best interests. After all, even the co-founder of the Performing Animal Welfare Society, which runs an elephant sanctuary, has admitted that life in a sanctuary doesn’t compare to life in the wild.
But if releasing Happy into the wild put her in imminent danger from poachers and predators, a group representing her could then even ask a court to take her into protective custody in a zoo or sanctuary, given that her right to liberty is imperiled by those threats.
And even if granted a right to habeas corpus, if that right was viewed with skepticism by the courts, it would effectively mean that little would actually change for the lives of elephants in zoos, and they might continue to live in the same conditions if a court found them to be adequate.
There are, of course, more conventional — albeit less headline grabbing — tactics that have worked around the world to secure better living conditions for elephants, including legislative action and public pressure, the former even being brought up by the judges hearing the case as the proper avenue to secure better conditions for elephants.
For instance, an elephant was moved from the San Francisco Zoo to a sanctuary after the San Francisco County Board of Supervisors increased the minimum size requirements for elephant enclosures. In another case, a ruling by Pakistan’s High Court and the work of animal rights activists (and Cher) will lead to an elephant in a poorly run zoo being moved to a sanctuary. And public pressure (along with funding from Bob Barker) led to the U.S. Air Force using a C-17 cargo plane to fly an elephant from a zoo in Alaska to a sanctuary in California. (The Air Force used the move as a training exercise.)
Contacting your legislators might not be the most exciting course of action — especially if you're a lawyer. But it is one of the most surprisingly effective, whether you’re looking to secure better lives for pachyderms or for people.