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.