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.


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:

The appeal itself (on 18 May) is reported in this blog here:  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:

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.

Keeping Them in their Places

At the top of Time Out’s list of recommended museum destinations in London this autumn is University College’s Grant Museum of Zoology and its exhibition ‘The Museum of Ordinary Animals’. The theme of the exhibition is “the mundane creatures in our everyday lives, including dogs, pigeons, cats, cows, chickens and mice”, and how these animals have, through their relationship with humans, “changed the world”: a very important theme, especially at the start of an academic year, when it may help to advise a new body of zoology students how to view their subject. Whether the advice implied in the exhibition is altogether good advice is another matter.

The Museum itself comprises one fine galleried room in the enormous 1920s Rockefeller Building, part of University College London’s medical school in Gower Street. Most of the room is taken up by a permanent collection: skeletons, whole and partial animals showcase 3 preserved in jars, and other remnants of the world’s zoology, themselves part of a much larger collection made by former administrations but still in use for teaching purposes. Being mostly (and very wisely) unmodernized, the room is a period piece. It looks, on its smaller scale, much as Oxford University’s Museum must have looked in the 1870s when John Ruskin gave his lectures there and angrily spoke against that collection as “the confused pillage of the continents of the world”. Ruskin hated its emphasis on the exotic and the dead, and he told the students “I could fill all this museum with studies of a duck and a drake, and a hen and chickens, and it should be more educationally useful than it is now.”

So the Grant Museum’s current exhibition, fitted in among these more traditional exhibits, may be thought of as making, at least temporarily, just the correction that Ruskin had proposed. There’s a showcase about chickens (illustrated with a stuffed hen) and other farmed animals. Another one follows the human-related migrations of feral rats. There’s a sad account of the imported domestic cat and its destruction of Australia’s wild-life. And two or three videos, as well as a display of snails inhabiting a log, show animals in the live state.

One showcase is labelled ‘Ordinary animals and medicine: the Brown Dog Affair’, and tells that story, illustrated with a picture of the original “very contentious statue” [see post for 7 August 2015]. Inside the case is a respirator for keeping such dogs alive “during vivisection”. It’s an ugly exhibit, or perhaps just an ugly idea; at any rate, here and elsewhere, the exhibition strives to be candid and impartial, positivist in the scientific sense, neither giving nor taking ground on the subject of what we’re entitled to do to these “ordinary” animals. Thus a case showing examples of dissection acknowledges that the practice is becoming less popular in schools “because of changing perceptions by many students and teachers about whether dissection is right”, but the word perceptions (being nowadays used to mean thinking rather than seeing) indicates that it’s a sociological rather than a moral point that’s being made.

All the same, illuminating as it is, the exhibition doesn’t really present a dis-interested account of the subject. In details, and in more general ways, its world-view is plainly and conservatively anthropocentric. That stuffed henstuffed hen, for instance (incidentally a modern piece of work), is glowingly clean and alert-looking, with a roomy glass case to itself. The plinth is simply labelled ‘chicken’, as if this glossy hen stands for all her kind, but the theme of the case is given as ‘The genetics of battery farming’. It amounts to a consoling lie. No battery-farmed chicken could look like this. A single photograph of ‘battery farming’ would have shown what in practice it means to a chicken’s health and appearance to “yield” (that’s the verb used in the exhibition) eggs or meat on the scale required.

And there’s a larger and stranger misrepresentation. Of these species that we “encounter every day on our plates, on our laps and on our streets”, by far the most familiar and ubiquitous, on our streets at any rate, is simply omitted, except as the reference-point for everything else. Anyone visiting the exhibition must feel this anomaly, having just been part of the herds of humans surging this way and that between UCL’s different buildings, and hunted off the roads by competing surges of the motorized sub-species. What the cat has done to Australia is a little thing compared to what humans have done there and everywhere else in the world. But I could find no confirmation in the exhibition that humans are even animals at all. In this room where the names of UCL life-science worthies are inscribed in gold on the ceiling brackets, the exhibition discourses as if the evolution of species has yet to be accepted in the university.

Then there’s the humour. Time Out’s review of the Grant Museum show is predictably flippant: “They’re playing a cat-and-mouse game with a show dedicated to all creatures ‘mundane’.” That’s how some journalists like to write. More dismaying is that the several curators of the show, some or all of whom are academic scientists, are infected with the same waggishness. “Most museums are too chicken to celebrate ‘boring beasts’ – but we’re not”, they announce on the more or less scholarly web-site ‘The Conversation’. And it’s there in the exhibition too. The text about cats in Australia is headed ‘CATastrophe’. The one about rats following human settlements is headed ‘Rat race’. Professor Steve Jones enlivens his display of Cepaea snails with a quip about the science of genetics having until recently moved at a snail’s pace.

This is fun science, I suppose (one of the associated events is a ‘comedy night’), but it’s instructive to compare the ‘Ordinary Animals’ show with another UCL exhibition a short distance away in the main building, entitled ‘What Does it Mean to be Human? Curating Heads at UCL’. This is a straight and wholly unjocular review of its subject, which is human attitudes and practices in relation to human death and the dead human body. It includes the preserved head of Jeremy Bentham, one of the founders of UCL. Bentham Benthamfirst bequeathed his own body to medical study in a will made when he was aged 21. Later he specified that it should afterwards be preserved and set up as an ‘auto-icon’ in the college – where indeed it may still be seen, in a cabinet stationed a few yards from this exhibition, though with a wax model for the head. Partly, Bentham wished to support scientific education, but he also, as a secularist, wished to de-mystify the human body, to rank it thus with the thousands of deserted casings of other species later to be kept in the college and visible in the Grant Museum. (For the ethical dimension to this egalitarianism, see the quotation from Bentham on the banner shown at the top of this page.) But evidently UCL hasn’t yet caught up with Bentham’s serene impartiality: the quite properly respectful, even wary, tone in the wordage to this exhibition is very different from the jauntiness at the Grant Museum. This, after all, is about us; over the road, it’s only about them.

UCL isn’t alone in this, of course. When the Oxford University Museum hosted a conference earlier this year with a similar theme, ‘Chickens and People: Past, Present and Future’, it did have a definite ideological aim: to consider “the consequences of our consumer demands [i.e. for “cheap protein”] on global human and animal health”. It hoped also to recover or at least recall, on the chickens’ behalf, something of the prestige which the species enjoyed in pre-modern times as one of the “special animals”. Even so, the event was presented with the same familiar winks and puns. “Why did the chicken cross the globe?” asked the University’s News and Events web-page, introducing the conference. The running narrative of the event on twitter was tirelessly joky: “Registration table ready!” “Flocking to take seats at the chicken conference.” “Cracking!” Someone tweeted a sign which they’d noticed outside an Oxford fast-food restaurant, advertising “our latest special Cluckosaurus Rex: it’s a clucking beast of a burger!” Noticed it with indignation and sorrow? Not at all, for in fact a highlight of the conference scene was a giant model chicken, placed alongside the Museum’s skeleton-cast of Tyrannosaurus rex and itself named ‘Dinnersaurus rex’. As the University’s web-site explains, “With chickens now being selectively bred to grow so large, so quickly, it won’t be too many decades before they reach dino-size.” It’s true that this model was part of a school project linked to the conference, and led by an official artist/comedian (wearing, hilariously, a papier-mâché chicken head), but that just makes the remorseless jocularity authoritative and prescribed. It would have been more in accord with the expressed purpose of the conference to teach or show children how to take animals seriously. I feel sure that most children would naturally prefer to do so.

The question is whether these adults take animals seriously. Perhaps they can’t really afford to, except as academic raw material; it would make using them for that or any other purpose so much more problematic. In her novel Hackenfeller’s Ape [see post for 11 October 2015], Brigid Brophy writes about a research monkey called Percy, and “the facetious spirit which had given the animal its name”. Mocking animals in this way, however mildly, has a function; it keeps them at a distance, makes their status more malleable. For after all, at the same time as boosting the chicken’s proper dignity with this conference, or proposing to do so, Oxford University had been conducting ‘procedures’ on real chickens as part of an extended study of their mating and reproductive characteristics (using red junglefowl or Gallus gallus, chief ancestor of the farmed chicken). This was partly a study in evolution, but it also aimed to illuminate “reductions in performance amongst domestic chickens and resultant impact on the poultry industry”. Such work presupposes and accepts the complete subjugation of the species, and supports it. I won’t detail the devices and techniques used to intervene in the animals’ sex acts, but neither they nor their commercial reference will have done anything to advance the status of this wretchedly abused species.

Like Oxford, UCL is always somewhere in the top three or four consumers of research animals among British universities. The uncertainty of attitude characterizing the events  at these two institutions, their unscientific speciesism, the habitual smirk with which the non-human animals are patronized, all these are symptoms of a divided mentality. As humans, we know that these animals are fellow-creatures, homogeneous with us in origin and mode of being, but so long as in practice we exploit them as objects, we cannot think and speak of them with the rationality of a good conscience, and it shows.


Notes and references:

The Grant Museum exhibition (on until 22 December) is introduced online at

Quotations about it are from the online text, or from the booklet issued at the Museum, unless otherwise stated. The exhibition is free, and the place is hospitable and well worth visiting anyway. The photograph of the hen is made available on the Grant Museum web-site. I should add that the taxidermist in this instance, Jazmine Miles-Long, quite reasonably calls her taxidermy “ethical”, in that she does not accept work upon animals which have been killed for that purpose.

The piece in Time Out, selecting London’s top ten museum exhibitions, was posted on 25 September here:

The exhibition ‘What Does it Mean to be Human?’ (on until 28 February 2018) is in the Octagon of the main Wilkins Building of UCL.

John Ruskin’s words come from lecture 4 in the series ‘Readings in Modern Painters’, delivered in the University Museum in Michaelmas Term 1877 (see Works, ed. Cook and Wedderburn, vol.22, p.520).

The Oxford conference took place on 27-8 January 2017, as presented on the University’s web-site here: and as variously reported on @Chicken_project.

The particular junglefowl study quoted is Borziac, K., et al, ‘The seminal fluid proteome of the polyandrous Red junglefowl offers insights into the molecular basis of fertility, reproductive ageing and domestication’, published in Scientific Reports 6, 2016. This was one of several publications arising from a research project at the University’s John Krebs Field Station.