Freedom Deferred

On 14 June, the New York Court of Appeals issued its ‘opinion’ (i.e. ruling) in the case of the elephant called Happy, whose entitlement to be released from captivity in the Bronx Zoo has been argued through the New York courts by the Non-human Rights Project (NhRP: the case is reported in this blog for 26 May). The judges rejected the appeal, affirming the decisions already made in the lower courts that this elephant cannot be the subject of a writ of habeas corpus. Whatever her cognitive and emotional properties as an elephant, she lacks the necessary and all-sufficient qualification of being human: Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not non-human animals.”

You’ll understand that the courts have not been refusing liberty itself to the elephant; they haven’t got that far. They’ve been refusing permission to request liberty on her behalf through a habeas corpus hearing. She is not even entitled to have her liberty asked for. If you wonder why this “procedural vehicle” can’t transport animals to freedom as well as humans, the answer is this: “the great writ [i.e. of habeas corpus] protects the right to liberty of humans because they are humans with certain fundamental liberty rights recognized by law [my italics].In short, the law says that humans alone have a right to liberty because the law jolly well says so. You can’t be clearer than that.

Well, couldn’t the law, by means of the habeas corpus writ, take a new look in this case? No: if the law in this matter is to be revised, the judges say, then it must be done by the state or federal legislatures. And after all, as they add with some natural pride, the state of New York has introduced, over the years, all sorts of laws and regulations to protect animals. The judges list some of them. However, noticing (as I guess) that this list, with its “now” such a law and “recently” such another, implies a clear direction of travel, they add a little footnote: this series of protections for animals “does not inexorably create a common law or constitutional right to liberty.”

In fact the judges themselves think that such a right for animals would be impossible to manage. If once it were to be established (for instance by allowing the NhRP to petition and succeed with its habeas corpus writ on Happy’s behalf), there would ensue “a morass of case-by-case inquiries”, with no guidance for the judges except their own “subjective” opinion about the welfare of each animal. In this “flood of petitions” foreseen by the New York judges, any owner or user of animals – “farmers, pet owners, military and police forces, researchers, and zoos, to name just a few” – might find themselves having to justify their dominion in the courts: an absurd situation, of course.

Happy

So this 14 June judgement is a seventeen-page affirmation of speciesism. For these judges, even animal protection laws, indeed even a court-case like the present one, pick us out as special: such concern for the welfare of other species just seems to be “an essential characteristic of our humanity.” Hence, of course, the Bronx Zoo’s determination, as testified by its chief veterinarian, to “ensure Happy’s continued physical and psychological well-being and health” (as illustrated in the photograph). It makes you rather proud to be human.

However, the more important and promising part of this judgement is that two out of the seven Appeals Court judges – Rowan D. Wilson and Jenny Rivera – submitted strong dissenting opinions. In fact, their reasoning takes up ninety-one further pages of the court’s published ruling. Judge Wilson’s is much the longer text, and Judge Rivera endorses it in hers, so I shall speak mainly about what he says.

Judge Wilson begins his opinion by recalling that in 1906 this same Bronx Zoo included among its most popular exhibits a human being called Ota Benga. This unfortunate man had been taken, with others, from among the Mbuti people living in what was then Belgian Congo. Like Happy, he had no status in law from which to appeal for his release. Ota Benga was not technically a slave, nor, when he gained his freedom (though he died shortly afterwards), was it achieved through a habeas corpus writ. But the discreditable story tellingly introduces Judge Wilson’s subsequent attack on the complacent speciesism of the five-judge majority. There is nothing historically fixed, in law or sentiment, about the human family as those judges now picture it. The further back we go, the more clearly do we find the roots of speciesism in a simple privileging of ‘persons like us’, however defined or felt at different times.

And of course Judge Wilson does take us back, in particular to slavery itself, and the part which the habeas corpus writ played in challenging that, at times when it was permitted in statutory law. More than permitted, in fact: The federal Supreme Court expressly endorsed it in its 1857 ruling in the now infamous Dred Scott case. But only three years later, in the so-called Lemmon Slave Case (Juliet Lemmon being the ‘owner’ of the slaves) ,the New York Court of Appeals itself, the same court now ruling in Happy’s case, had freed eight slaves in a habeas corpus hearing on the grounds (among others) that “liberty is the natural condition of men.” This court looked at the detention of these slaves, Judge Wilson argues, not as a matter of established law, but as a matter of justice. He also analyses the Somerset case of 1771 – a favourite reference for Steven Wise, the founder of the Non-human Rights Project – in which a slave was similarly freed with a habeas corpus writ in London.

The intended implication of all this, of course, is that it’s now the turn of other species of improperly detained being to be brought into the scope of the writ. But the courts have very much disliked this line of argument. In the opinion of the five-judge majority, to allow any sort of comparison between human slavery and the plight of animals is “odious”. You may recall Steven Wise’s own response to this objection, made during a radio programme (reviewed in this blog on 12 September 2016): “My people were enslaved by Pharoah a long time ago, and I understand it.” Judge Wilson is more circumspect. He anyway does not propose, in his argument, that Happy or any other animal should be classed as a ‘person’ (which is the NhRP aim). With artful humour, he propitiates the speciesism of his five colleagues, conceding the point to them thus: “Human beings should have greater rights than elephants, if only because we make the rules.” For him the connection is simply that slaves did not have, in earlier centuries, as animals do not have now, what the other judges call “fundamental liberty rights recognized by law”. The habeas corpus writ, he argues, has always been impartially available to redress wrong in just that absence of other legal protection.

Then he reassures the others as to the “enormous destabilizing impact on modern society” which they believe a victory for such as Happy would entail. A favourable decision in habeas corpus does not change the law at large; it deals only with individual cases. It did not, for instance, put an end to slavery, or for that matter emancipate women, though it did liberate individuals in both categories from particular captivities. No “flood of petitions”, such as the judges fear, happened then – although, as the judge shrewdly asks, “if Somerset’s Case, the Lemmon Slave Case or the cases involving women and children had produced a flood of habeas petitions freeing victims of unjust confinement, would history view them with disapproval?”

Near the beginning of his opinion, Judge Wilson quotes the famous passage in Jeremy Bentham’s Introduction to the Principles of Morals and Legislation (also quoted on VERO’s own banner): “The day may come when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny [Bentham’s own sceptical italics].” It’s a telling quotation partly because, as Wilson’s more complete version shows, Bentham himself, the great reforming jurist, puts the animal case into the context of slavery: “the rest of the animal creation” (“the animal creation”, as his text makes clear, includes humans) means, in his context, ‘coming after the freeing of slaves’.

But more essential to Judge Wilson’s case is that phrase “The day may come.” He looks upon the habeas corpus writ as above all an innovative device, providing a type of redress that is “slightly or significantly ahead of the statutory and common law of the time” – exactly, then, a bringer on of such hoped-for days. Indeed he says, after the Bentham quotation, “that day is upon us.” He accordingly dismisses the majority’s preoccupation with precedents and traditions, what he calls their “glommed-together authorities”:

The majority’s argument—“this has never been done before”—is an argument against all progress, one that flies in the face of legal history. The correct approach is not to say, “this has never been done” and then quit, but to ask, “should this now be done even though it hasn’t before, and why?”

Neither of the two dissenting judges share the complacent speciesism of the majority five (who at one point confirm their point of view with a quotation from an Agriculture and Markets Law which helpfully defines ‘animal’ as “every living creature except a human being”). This is how Judge Rivera puts the point:

The majority’s argument boils down to a claim that animals do not have the right to seek habeas corpus because they are not human beings and that human beings have such a right because they are not animals. But, of course, humans are animals. And glaringly absent is any explanation of why some kinds of animals—i.e., humans—may seek habeas relief, while others—e.g., elephants—may not.

Both judges insist that so far from being self-sufficient allocators of value and status, human beings have their own value and status implicated in this relation with other species. Judge Rivera concludes her argument by saying this about Happy the elephant:

Her captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished.

Accordingly, Judge Wilson sees the law (the common law at least, and habeas corpus in particular) as a reflection not of what the five judges picture statically as our “humanity”, but rather of “who we might want to be as a society”. This is what’s called ‘virtue ethics’: that is, ethics founded, not on contracts or calculations, but on a model of what we should be, or, viewed another way, of what we shall in time regret not having been, even have to apologize for failing to be – as we have apologized in the case of slavery.

Both of these dissenting opinions argue, then, that the habeas corpus writ is a means by which the law might enable us to become what we ought to be, and that in leaving Happy petitionless in captivity the court has failed both the animal and the people.

Notes and references:

The ruling of the New York Court of Appeals, with the dissenting opinions, can be read here: https://www.nycourts.gov/ctapps/Decisions/2022/Jun22/52opn22-Decision.pdf?emci=289e131a-16ec-ec11-b47a-281878b83d8a&emdi=002d2c1d-34ec-ec11-b47a-281878b83d8a&ceid=11570862

The appeal itself (on 18 May) is reported in this blog here: https://voiceforethicalresearchatoxford.wordpress.com/2022/05/26/i-see-my-light-come-shining/  The radio programme that had Steven Wise and other lawyers discussing the rights of animals was broadcast in September of 2016, and was featured in this blog here: https://voiceforethicalresearchatoxford.wordpress.com/2016/09/12/let-my-people-go-animals-and-the-law/

The Bronx Zoo veterinarian is quoted on Happy’s welfare in the Appeals Court majority opinion.

The Jeremy Bentham quotation comes from his Introduction to the Principles of Morals and Legislation, Clarendon Press, 1781, p.311, note 1.

A Templeton Inheritance

All the time, in universities and other science institutions throughout the world, men and women are engaged in studying the minds of other animals. The word ‘mind’ isn’t the one they normally use, of course: ‘cognition’, ‘behaviour’, ‘affect’, and other such terms keep the subject less dangerously anthropomorphic. A few of these studies show up in the media in the form of ‘smarter than we thought’ stories, the smartness usually consisting in surprisingly human-like capacities: so what’s meant is ‘more like us than we thought’. But most of them belong to a steady and un-newsworthy throughput of laboratory research using the less picturesque animals. Whereas the research that appears in the press has sometimes been dis-interestedly concerned with how different species think and behave, these others are nearly always using them to provide insights into the human mind.

Here’s one such research project going forward at present. It appears as Non-technical Summary number 2 (because so far I’ve only looked at two, out of a possible 466) in the list of research projects approved by the Home Office in 2020, which have just now been published by the government. The project is titled ‘Affect and cognition in rodents’. It will use 1400 rats and mice over a five-year duration. 75% of the planned ‘procedures’ are predicted to be of ‘mild’ severity, and the rest ‘moderate’. Against the question “What will happen to the animals at the end of the study”, the applicants have put “Kept alive/Killed”, which seems to cover all the possibilities, if not very informatively. The general aim of the project is as follows: “To identify and characterise the psychological and biological mechanisms underpinning the affective and cognitive processing of rewarding and punishing stimuli and dysfunctions/disturbances of such processes.” There’s a limit, you see, to how ‘non-technical’ one wishes to be in these matters.

The knowledge gained from this research, as the quotation clearly implies, will be knowledge not just of rats and mice, but of humans too (perhaps of all animals with central nervous systems). In fact the principle benefit hoped for will be “novel therapeutic strategies” for human psychiatric disorders. But the project should also, we’re told, contribute to a better understanding and treatment of laboratory rodents. You may suspect that the second benefit was a politic after-thought (it’s for their sakes too!), for surely, now that so many millions of these rodents have passed through their hands, researchers must know all that can be known about how to look after them? But no, only in 2017 did research show that mice would rather be carried in cupped hands than upside down by the tail. There’s always more to learn! Perhaps the same will be true of the “novel therapeutic strategies”, then.

You’ll have noticed the phrase “psychological and biological mechanisms”. The old behavioural model of mind, as a machinery of responses put together by a history of pleasures and pains, evidently lives on, and indeed much experimental psychology still relies on this reductive way of dealing with mind. However, there is presently an ambitious scheme of research into this subject of animal minds which expressly repudiates what it calls “mechanistic models of animal cognition”. It also dispenses with the assumption that animal mentality has been a more or less straight-line trek from the near-darkness of simple organisms to the brilliant light of human intelligence. This project is a collaboration between neuroscientists, ethologists, philosophers and other academics, and is called Diverse Intelligences.

Simple_Periodic_Table_Chart-blocks.svg

The collective aim of Diverse Intelligences is to create a ‘periodic table’, like the familiar one that maps the chemical elements by atomic number, but in this case mapping all the varieties of animal intelligence by – well, what? perhaps neuro-anatomy, behaviour, habitat-niche. At any rate, the idea is that it will organize and relate animal minds but not rank them. Human intelligence will be there all right – necessarily distinct for, as one of the participant scientists says, “There is something different about it because other organisms on this planet are not having conversations about this” (though they surely are having to deal with it in practice). Distinct, then, but not privileged, for he adds “I don’t think it’s a story of human exceptionalism.” And all the other animal minds will have their own distinct positions likewise.

Before thinking further about this great international project, it’s helpful to know where the funds are coming from. The provider is the Templeton World Charity Foundation, a huge philanthropic outfit founded by Sir John Templeton. That’s a name well-known in Oxford. It was Templeton money that turned the university’s Centre for Management Studies into Templeton College (just outside the city). This institution merged with Green College in 2007 to create Green Templeton College. Sir John himself was a very successful investment financier in the USA, who had been a Rhodes Scholar at Oxford in the 1930s. His early benefactions were aimed at raising standards in business and management, but he had ambitions for something much more comprehensive, which the Charity Foundation calls “the science of human flourishing”.

Green Templeton College, a graduate college with special interests in medicine, social sciences, and environment, already reflects this ideal. But John Templeton was a committed (though undogmatic) Christian, and believed that humans couldn’t flourish without cultivating and as far as possible understanding their spiritual nature. So the Foundation undertakes to “support exploration of the nature of religious belief and practice”, and “invest in basic scientific research that could shape how we think about human existence.” Accordingly, the Templeton Prize, another generous arm of the charity (it’s worth more in cash than the Nobel Prize), has been given equally to scientists and religious figures – ideally, it seems, to those who belong to both camps.

This particular attempt to bring science and spirituality together receives a hearty drubbing from the biologist and militant atheist Richard Dawkins in his book The God Delusion. He speaks of it as “a very large sum of money given annually by the Templeton Foundation, usually to a scientist who is prepared to say something nice about religion.” Particular fun is made of a project funded by the Foundation in 2005-6, sometimes called the Great Prayer Experiment, and aimed at testing the efficacy of prayer in the convalescence of heart-surgery patients (no positive effects were identified). Dawkins considers that the Prize, and the Templeton projects more generally, have a corrupting effect on science and scientists.

The God Delusion is a brilliant and entertaining book, and the Templeton values, as earnestly promoted in the Foundation’s high-minded prose, are anyway rather easily mocked. But then the prize-winner last year was the primatologist Jane Goodall, and here one can see how the Templeton vision works. She has of course proved herself a highly accomplished scientist. Has she also said “something nice about religion”? Well, she has said “I feel a really strong spiritual connection with the natural world on which we depend.” And the prize citation spoke approvingly of her “humility” – rather a key Templeton word, and with good reason when desiderated of science and scientists. I’m not sure exactly what aspects of Jane Goodall’s work the Templeton Foundation had in mind there, but it’s surely true that her studies of chimpanzees pioneered a less reductive, less condescending zoology. Giving names to these animals, as she did in violation of scientific orthodoxy, can now be seen as standing for a sense of engagement and responsibility which have since expanded far beyond them in her thinking. So not just chimpanzees and not just wild animals, but farm animals (she is now a vegan) and lab animals (she opposes the use of animals in research) are implicated in that “strong spiritual connection with the natural world”.

We can hope that the Diverse Intelligences project will incorporate that sort of spirituality, but its topic is a hard one, ethically as well as scientifically. The word ‘intelligence’ itself seems to make human cleverness the standard. One of the philosophers involved in the project has argued that, for just that reason, this word will help to claim for other animals the mental prestige which we have treated as peculiarly our own: they’re clever too! I’m not altogether convinced by this argument.

Then there’s the ‘gee whiz!’ aspect of the subject. An article about the Diverse Intelligences project has recently been published in New Scientist (a serious non-academic journal of science news and analysis). Enthusiastically citing instances of animal “smarts” (is there such a word?), its author mentions rooks that can get at a “treat” floating inside a jar by dropping in stones that raise the water-level, octopuses that can “easily open a jar”, and a chimpanzee able to memorize “random sequences of nine numbers that a screen flashes at him for only 60 milliseconds”. Certainly these skills show cleverness, but contrived tricks of this sort will not, or at any rate should not, do much to “fundamentally change how we view other species”, as the writer believes the project is set to do. (Incidentally, the Diverse Intelligences prospectus does not rule out experimental work, unless it’s “cruel or inhumane”.) Even the “sense of wonder”, spoken of in the article (and Richard Dawkins, too, is very keen on the value and sufficiency of science-fed wonder), is in practice very selective. It won’t much help the species we’ve subdued and multiplied into anonymous familiarity, like farm animals or the rats and mice of the non-technical summaries.

53. glimpse of freedom

The claim which such subject animals have to our respect and forbearance is not that they’re “astonishing” in the New Scientist sense, or even clever, though it should have been their birthright, as it certainly is that of every wild animal, to be clever enough for the life they would naturally lead; it’s that they have as much inclination and right to flourish (the Templeton word) as any other animals, humans included. I hope that this will be clearly implied when they have their own boxes in that periodic table, the same size of box as ours and all the others.

Notes and references:

The Home Office’s online publication Non-technical Summaries granted in 2020 was issued complete in two ‘volumes’ on 6 June 2022. ‘Affect and cognition in rodents’ occupies pp. 18-25. The total of 466 projects takes up 3465 pages. See https://www.gov.uk/government/publications/non-technical-summaries-granted-in-2020#full-publication-update-history

The mouse-handling study is reported here: https://newatlas.com/mouse-transport-influences-study-results/48512/

The Templeton Foundation’s general aims are quoted from its very extensive web-site here: https://www.templeton.org/strategic-priorities.  The prospectus for the Diverse Intelligences project appears here: https://www.templetonworldcharity.org/our-priorities/diverse-intelligences/brilliance-living-world. There’s an interesting interview on film with one of the academics involved (Marta Halina of Cambridge University) here: https://aeon.co/videos/how-a-periodic-table-of-animal-intelligence-could-help-to-root-out-human-bias. It’s she who thinks that ‘intelligence’ will be a usefully corrective word in studies of cognition.

The God Delusion is quoted from the Black Swan edition of 2007, p.40.

Jane Goodall’s Templeton Prize was featured in the Guardian newspaper on 20 May 2021, accessible online here: https://www.theguardian.com/science/2021/may/20/naturalist-jane-goodall-wins-2021-templeton-prize-for-lifes-work

The article titled ‘Different Minds’, written by Ute Eberle, appeared in New Scientist on 14 May 2022, at pp. 42-5. As well as the author herself, one of the Diverse Intelligences academics, Andrew Barron of Macquarie University, is quoted from this article (on human intelligence).

The woodcut, from Sue Coe’s collection The Animals’ Vegan Manifesto (OR Books, 2017), dreams of intelligent co-operation among farm animals, tragically caught up as they are in the workings of human intelligence.