Yesterday, the Nonhuman Rights Project filed a petition on behalf of three elephants being kept at a Connecticut zoo. The suit demands that the court recognise these animals as “legal persons” and release them to sanctuary, but given that the same legal team failed to secure similar personhood rights for chimps in New York, it isn’t immediately clear how successful the new effort will be.
Photo: AP
The trio of elephants, Beulah, Karen and Minnie, never asked for legal representation, but the lawyer in charge of the NhRP suit, Steven Wise, argues that they’re legal persons with the fundamental right to bodily liberty, or in the parlance of lawyers, habeas corpus. The three elephants, ranging in age from 45 to 50, were captured as wild animals when they were young and have been used for decades in travelling circuses, fairs and even birthday parties. The elephants are currently held at Commerford Zoo in Goshen, CT, and should the NhRP win the suit, the animals would be allowed to retire at the Animal Welfare Society’s ARK 2000 natural habitat sanctuary.
According to a NhRP press release, it’s the first-ever nonhuman rights lawsuit filed on behalf of captive elephants. Unlike efforts elsewhere to recognise the “personhood” of corporations, rivers and natural parks, Wise’s team is claiming that the elephants are bona fide persons – that is, living creatures that are actually capable of self-awareness, empathy, and a sense of the passage of time. In the United States, animals are regarded as property, but should a species be granted personhood rights (which hasn’t happened), individual animals would no longer be subject to such things as confinement at zoos and aquatic theme parks, medical experimentation, trafficking, and other hardships. Importantly, it doesn’t mean they’d be allowed to vote or take out a mortgage. Legal persons are deserving of what ethicists and philosophers call “negative rights”, which means they have a right to not be subjected to an action of another person or group.
To make its case, the NhRP collected affidavits from nearly a dozen prominent elephant experts, including Lucy Bates, an Honorary Research Fellow at the University of St Andrews, and Richard M. Byrne, a research professor from the University of St Andrews.
“Our understanding of elephants has only deepened over time: for example, we know they have a sense of self, remember the past and plan for the future, engage in complex communication, show empathy, and mourn their dead,” David Zabel, the NhRP’s local counsel in Connecticut and a partner at the law firm of Cohen & Wolf, said in a statement. “But their legal status as ‘things’ with no rights has remained exactly the same. What’s at stake here is the freedom of beings who are no less self-aware and autonomous than we humans are.”
Kerry Bowman, a bioethicist at the University of Toronto, says this latest case is a clear indication of the growing cultural shift in attitudes toward nonhuman life. “This is a truly valid question for the courts of Connecticut as elephants are both sentient and sapient,” he told Gizmodo.
This case in Connecticut isn’t the NhRP’s first rodeo. It’s the same group that filed chimpanzee rights cases in New York starting in 2013, ultimately failing in its objective. Earlier this year, an appeals court put the final nail in the coffin on the NhRP’s chimp effort, stating:
The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. […]
Petitioner argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights. This argument ignores the fact that these are still human beings, members of the human community.
The court basically concluded that humans are persons because they’re humans, and that chimps aren’t persons because they aren’t humans. Wise has, quite justifiably, construed this as a mistake, and has decided to continue his team’s efforts in both New York and Connecticut, while also broadening the scope to include elephants.
“While each jurisdiction has different statutes and judicial decisions, the substantive law of Connecticut is not that different from that of New York,” Wise explained to Gizmodo. “Therefore we are making substantially similar arguments on behalf of the three elephants. As part of our memorandum to the court we carefully dissect any adverse court decisions in New York so as to demonstrate that they are not only plainly wrong under Connecticut law but plainly wrong under New York law.”
Wise believes that some of the New York courts got their own law wrong and issued decisions that were “remarkable for being unique in the English-speaking world”. For example, Wise says the definition of “personhood” used in the NY courts were pulled from Black’s Law Dictionary – a definition that the dictionary later disavowed. “[We] brought this disavowal to the attention of the court,” said Wise. “Still the court relied upon it.” Wise believes that the New York judges were hearing personhood arguments for the first time, and that it will take some time for the concept to become normalised in legal discourse.
As for the change in state, Wise says that “Connecticut was chosen for the specific reason that its law of liberty, equality, autonomy, and habeas corpus are likely more favourable to us than might be the law of many other states. If the Connecticut courts follow their own law, which some judges did not do for their own reasons in New York, we expect to do well. But again, this is a matter of first impression in Connecticut as it was in New York.”
Speaking to The Washington Post, Richard L. Cupp, a Pepperdine law school professor who’s critical of the NhRP’s approach, argued that the best way to protect animals is through animal welfare laws.
“It would not surprise me if these [elephants] could be put in a better situation,” Cupp told WaPo. “But we should focus on human responsibility, either by making sure that our laws are enforced, which sometimes they’re not, or expanding our laws. Our expansion of animal protection laws has been dramatic over the last 20 or 30 years. I’m arguing that should continue.”
Wise, on the other hand, says “this is not an animal welfare case,” and that the three elephants have been deprived of their freedom.
Clearly, this isn’t an issue that’s going away any time soon. In addition to recognising the personhood of qualifying nonhuman animals, our technologies may eventually get to the point when we’ll have to start recognising the moral worth of artificial intelligence and robots. It would be incumbent upon us to get this figured out before we take the monumental step of imbuing sentience into a machine.