Judge Grants Historic Case On Whether An Elephant Is A Person

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Animal rights lawyer Steven Wise in court, as seen in UNLOCKING THE CAGE, a film by Chris Hegedus and D.A, Pennebaker.Pennebaker Hegedus Films/HBO, A First Run Features Release

The most forlorn-looking elephant caged alone at the Bronx Zoo is also the first elephant to demonstrate self-awareness via the mirror self-recognition test (MSR). Today, Jane Goodall, Steven M. Wise and the legal team at the Nonhuman Rights Project (NhRP) helped secure another first for the sad elephant named Happy. She’s now the first elephant to be granted a Writ of Habeus Corpus, meaning justice Tracey A. Bannister of the Orleans County Supreme Court will rule on whether or not Happy should be considered a legal person.

For a decade the NhRP has used the legal pathway of Writ of Habeas Corpus on behalf of nonhumans, making the case that elephants and other self-aware, cognitively advanced beings are not ‘things,’ they are not merely ‘property’. The team is calling for a fundamental change in our laws–because laws that call elephants ‘things’ cannot be supported logically, legally, morally or scientifically. The slow-turning wheels of justice revolve at the pace of our evolution of thought. The past few years, these wheels started picking up speed.

“Look at who they are,” Wise asks the courts and the public to try to see the worth of beings that don’t look like us. Not surprisingly, it’s a big ask. Humans have a long history of ignoring the worth of those who don’t look like us. “We have evidence,” says Wise. “It’s wrong to treat them as if they’re basic, inanimate beings. They are autonomous beings. They are extraordinarily cognitively complex and they ought to have fundamental legal rights that protect these fundamental cognitive characteristics.”

If judge Bannister rules that Happy should be removed from the Bronx Zoo to a Sanctuary, Happy would get another first–first nonhuman granted personhood in the United States. Bannister doesn’t have to come right out and say Happy is a legal person. The judge may simply order Happy released from the Bronx Zoo. Yet such an order means the judge is ruling that Happy has at least a basic degree of legal personhood.

Happy is the second cognitively advanced nonhuman to be granted the right to plead for rights afforded legal persons. That may sound confusing but basically, if you’re not a person you need to first win the right to ask for rights. Two chimpanzees, Hercules and Leo, were previously granted Writ of Habeus Corpus. This allowed the NhRP to go to court on behalf of the chimps to try to secure their legal personhood. The chimps were denied personhood, but the judge made it clear her decision was only because she was bound by the ruling of a higher court and not based on the merits of the case. “If she had felt that she was free to make that decision, it seems like she would have ruled in our favor. But we will never know,” says Wise. As for this new judge Bannister, “I think she believes that there is some reasonable chance that after oral arguments she could decide that Happy the elephant is a person.”

The global groundswell around expanding our understanding of cognitively advanced nonhumans and granting them rights and freedoms, is picking up steam. In part, this is due to scientific advances in our understanding of nonhuman minds, as well as our increased willingness to consider the possibility of sentient artificial intelligence or life on other planets. It’s also motivated by the sixth mass extinction currently underway, where humans are driving many other species off the planet. “So many of the most cognitively complex nonhuman animals, orcas, apes, elephants–they’re being driven to extinction the fastest,” says Wise. “We want to be able to begin asserting their rights not to be killed, not to be driven into extinction.” If the NhRP succeeds in having these nonhumans designated ‘legal persons,’ the extinction of these species essentially amounts to genocide. Wise takes this logic one step further: denying legal personhood to cognitively advanced beings is a form of abetting genocide. He also notes that the United States is way behind other nations in recognizing the rights and freedoms of nonhumans. India in particular:

In 2014, the Indian Supreme Court said that all animals in India have certain kinds of statutory and constitutional rights. That was at the supreme court level. The following year, 2015, a judge and the Delhi High Court ruled that birds have a fundamental right to fly. He ordered the defendant to open the cages and let the birds out that he was keeping captive and felling. Earlier this year, a case involving horses and how they’re being treated when they’re moving between India and Nepal–the judge went ahead and said that all animals have certain kinds of fundamental rights. It went way beyond horses. He said all animals, including avian animals and aquatic animals.”

The NhRP is cognizant of the fact that they’re chipping away at a deeply entrenched mental and legal precedent. “You’re not just going to come out of nowhere and make an argument to a court that the last 2000 years of law has been wrong,” says Wise. It takes time to change embedded perceptions, especially when such perceptions edge humans further away from the center of the universe. And this nudge comes with a moral reckoning.

For Wise, years of persistence in the face of near-constant, but expected setbacks is starting to pay off. He’s starting to see that evidence-based justice and compassion is winning out over precedent and an anthropocentric worldview. “We think we have very powerful scientific facts and we have very powerful legal arguments, and by God, we’re going to keep making them because they’re going to prevail.”

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