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.

I See My Light Come Shining

The documentary film Unlocking the Cage (reviewed in this blog for 13 February 2017) follows the lawyer Steven Wise as he tries to persuade American judges to free four chimpanzees from varieties of miserable captivity. At the end, we see him thoughtfully watching an elephant forced to provide fun for American families. Elephants would indeed come next in his campaign (called the Nonhuman Rights Project or NhRP). Not that the chimpanzees had been freed; nor were the three elephants who came next, in court cases from 2017 to 2020. Some of this company of prisoners died during the endeavour. Tommy the chimpanzee simply ‘disappeared’. The others languished where they were, or went on to different forms of captivity and exploitation.

Wise in court

Even so, it’s not a story of failure. Steven Wise would be a hard man to defeat, and the NhRP is always making progress, as this post will show. On Thursday last, it came before the New York Court of Appeals, the state’s highest court. It’s the first time this court has dealt with the rights of an animal, and also, as Wise says, “the first time in history that the highest court of an English-speaking jurisdiction will hear a case that demands a legal right for a nonhuman being”. The subject of the case is an Asian elephant, 51 years old, presently being kept for public interest and entertainment at the Bronx Zoo. The court’s judgement will be published at some time in the coming weeks.

The elephant in question is called Happy, an insultingly inappropriate name for this animal so patently deprived of her natural pleasures. It expresses, besides, the frivolity of attitude in the humans who imported her, with six other elephant calves, into the United States from Thailand in 1971. The abducted animals were named after Snow White’s seven dwarfs (elephants called after dwarfs, you see: chuckles all round!). The same facetiousness has pursued her ever since. In the monorail car that takes visitors above her enclosure, so a report in National Geographic tells us, “a chirpy guide cracks jokes and rattles off facts.” In media likewise, of course: one report on the case is headed “Happy the elephant hopes to pack her trunk after court case”. What fun animals are!

Intentionally or not, all this drollery is a proportioning device, and it works. As counsel and judges discuss the situation in the Court of Appeals (a video of the proceedings is available on the NhRP web-site), that name continuingly damages the seriousness of the case, sentimentalizing and diminishing the animal, making her seem incongruous as the subject of attention in that grand setting.

That, of course, is exactly the case being made by the respondents to the case (the Wildlife Conservation Society, and the Bronx Zoo which it manages): i.e. that neither Happy, nor any other animal, is important enough to feature in a writ of habeas corpus of the sort which the NhRP is bringing to the court on her behalf: “It puts them in the same category as people, which we oppose” says their counsel. The text of the habeas corpus writ does indeed refer to “persons”. It’s a device in common law (that is, law as developed by judges in the courts, rather than fixed in statutes), which requires those who detain such “persons” to justify the detention before a court or else to release them. And this is the legal instrument with which Steven Wise has been trying to liberate those chimpanzees and elephants. In order to make it work, he has had to show that these animals can properly be considered ‘persons’.

Elephant Scratching Face on a Tree

The argument is not, then, about welfare, which is covered in statutory law. The Zoo’s counsel may well be right in insisting that Happy’s treatment satisfies such law, miserable as she obviously is, but it’s beside the point. The key word in the NhRP’s case is ‘autonomy’. Happy is entitled to be called a ‘person’ and so enjoy the protections of habeas corpus because she has all the cognitive and emotional faculties of an autonomous being, fit to make her own choices and direct her own life. She should therefore be freed to practise and enjoy her autonomy, if not in the absolute wild (it’s far too late for that), at least in a sanctuary that closely imitates it.

Of course no animal has yet been freed in such a way, and this fact inhibits judges who, in common law, generally look to former cases (i.e. precedents) for their guidance. But at least they are not confined by statutory laws, and in practice judges have often enough decided according to their own sense of natural justice or of the changing social attitudes and requirements of their times. Specialists in the use of habeas corpus have spoken of its efficacy in past cases to establish human rights, for instance the rights of wives and children, which “were well in front of statutorily mandated protections”. Steven Wise has written a book about one particular instance: the judgement of Lord Mansfield in 1772, freeing the slave James Somerset, even though there was no existing law to say that slavery was illegal, nor any common law precedent for such a decision. Lord Mansfield’s decision was essentially a moral one: slavery was, he said, “so odious, that nothing can be suffered to support it but positive law.” Britain of course had no such positive law to support slavery, so James Somerset was freed.

It had been put to Lord Mansfield that freeing Somerset would have a catastrophic effect: learning that Britain had outlawed slavery, Somerset’s fellow-slaves in the Americas would “flock over in vast numbers, over-run this country, and desolate the plantations”. Lord Mansfield acknowledged that such concern for the larger consequences, good or bad, of a court’s decision, were legitimate (lawyers call this factor in judicial decision-making ‘policy’). But he rejected it in this case, using the Latin dictum ‘fiat justitia ruat coelum’ (roughly, ‘let right be done regardless of consequences’). And now this same argument as to ‘policy’ is being put to the judges in Happy’s case. Counsel for the Zoo warns of “the dramatic impact” that a victory for Happy “would have on our society.” Not just farmers would feel their livelihoods threatened. The Zoo’s case has the backing of the National Association for Biomedical Research, which fears that extending habeas corpus to animals “would impede important medical breakthroughs”. One judge asked counsel for the NhRP whether the aim was to make any human use of an animal illegitimate; another wondered if dogs might in future be habeas corpused from their owners. In fact the Bronx Zoo, which intends to discontinue its elephant ‘exhibits’ in the near future anyway, seems to be fighting the case precisely in order to prevent this dangerous precedent.

It’s a difficult point to defeat in court, and counsel for the NhRP (not Steven Wise this time, but Monica Miller) admitted that it would be “disingenuous” to say that Happy, if freed, would bring an end to the story. Of course she would not. For after all – which Ms Miller did not say – autonomy is nature’s promise to every life born, except perhaps in the case of swarm animals. (I note a placard at one NhRP event that reads “Freedom is the right of all sentient beings”.) Accordingly, counsel for the Zoo complained at an earlier hearing, “this is not really about elephants. It’s about elephants, it’s about giraffes . . .” “It’s about animals,” the judge agreed – perhaps nervously, perhaps with Mansfield-like willingness to let in the uncertain future (for this was Judge Alison Tuitt, of whom more below). And that indeed is the answer to the ‘floodgates’ objection: Fiat justitia, let right be done, and after that let us adjust ourselves to whatever world it turns out to imply.

It doesn’t take long to watch the recent hearing in the New York court, because the whole thing took no more than half an hour. It may even seem somewhat disappointing: shapeless, imprecise. (I missed Steven Wise’s good-humoured forensic authority.) But there have been three earlier hearings in lower courts, with much longer attention spans. And besides, the case in this New York court has the backing of a great volume of argument submitted by its amici curiae (‘friends of the court’, effectively expert witnesses): there are eighteen of these textual ‘briefs’ – involving 146 organisations and individuals, including lawyers, philosophers, zoologists, and theologians – together constituting an education in animal rights. And it’s evident from those earlier decisions, adverse though they’ve been, that the judges do read and ponder these amicus briefs, as well as the arguments put in court. At any rate, the aforementioned Judge Tuitt, for instance, when ruling (“regrettably”, as she said) against the NhRP’s claim in the Bronx County Supreme Court in 2019, said this:

Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.

And she quoted Judge Eugene Fahey’s opinion in the case of the chimpanzees Tommy and Kiko the year before:

The issue whether a nonhuman has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately we will not be able to ignore it.

Writing in the year 2000, Steven Wise recalled having to speak for animal rights before judges who belonged to “an intellectual world that Galileo and Darwin” had “not yet penetrated.” Since then, however,

judges who matured alongside the newer animal rights movement have begun to take their places. They will be better equipped to examine the objective data and hear – not just listen to – the supporting arguments. They will begin to rattle the cage.

That’s just what Justices Tuitt and Fahey were doing to the cage. In time, for certain, they or other judges will actually open it. May it be this time, and this elephant’s cage which they open!

Notes and references:

There is a petition backing the case for Happy’s release to a sanctuary here: https://www.change.org/p/end-happy-the-elephant-s-10-years-of-solitary-confinement

The film Unlocking the Cage (2016) as reviewed in this blog: https://voiceforethicalresearchatoxford.wordpress.com/2017/02/13/unlocking-the-cage/

The court hearing on 18 May can be viewed in this video, which actually starts at Ihr 04 minutes in, with some introductory comments from Steven Wise: https://www.nonhumanrights.org/blog/Highlight_Page/the-fight-to-freehappy/. This page also has links to various reports in the media, including the piece in National Geographic quoted above. The heading ‘Happy the elephant hopes to pack her trunk’ comes from The Times newspaper, 13 May 2022.

The amicus briefs submitted for the NhRP to the New York court are listed, with links to the texts, here: https://www.nonhumanrights.org/?p=17232?date=1652869015349.  The quotation about habeas corpus comes from brief no.7, which provides an excellent account of the writ and its potential.

Steven Wise’s book about the James Somerset case is Though the Heavens May Fall: the Landmark Trial that Led to the End of Human Slavery (Da Capo Press, 2005: note the word ‘human’ in the title: not all slavery yet.] He also writes about the Somerset case in Rattling the Cage: Towards Legal Rights for Animals (Profile Books, 2000), from which the quotations from Lord Mansfield and counsel in the case are taken (pp. 50 and 103-4), and also the concluding quotations about judges old and new (p.77). The words about slaves flocking to Britain were actually those of counsel for Somerset himself, caricaturing the argument as used by the opposition.

The National Association for Biomedical Research is quoted from the amicus brief which it submitted on behalf of the Bronx Zoo and the Wildlife Conservation Society, itself quoted in a very thorough article in the New Yorker (7 March 2022) about the case. The quotation “it’s about giraffes . . etc.” comes from this same source.

Judge Alison Tuitt’s ruling, in 2019, can be read here: https://www.nonhumanrights.org/content/uploads/HappyFeb182020.pdf  Judge Fahey’s words are quoted from his opinion in the 2018 hearing of the case for the chimpanzees Tommy and Kiko: https://www.nonhumanrights.org/blog/Highlight_Page/the-fight-to-freehappy/ What he says very clearly implies an expected transition from law as an exclusively human amenity, to law that provides justice to all that can benefit from it.

The title is a line from Bob Dylan’s song I Shall Be Released, played during the final credits for the film Unlocking the Cage.