Elephant Habeas Case: Steven Wise Is A Well-Intentioned Menace

Cross-posted at Letters Blogatory.

At the bitter end of the Monkey Selfie case, I pointed out that the “animals are people” genre of animal rights litigation isn’t just a feel-good resume builder for bright 2Ls in the animal rights clinic. It has real victims. In the Monkey Selfie case, the victim was David Slater, the photographer, who went broke defending the case. I’ve also written about a chimpanzee habeas corpus case (unsuccessful, of course) brought by the Nonhuman Rights Project and its leader, Steven Wise.

The NhRP and Wise have now brought an elephant habeas corpus case in Connecticut. The victim this time is Tim Commerford, who owns a local zoo. Commerford has complained that the NhRP and Wise “are picking on us and targeting us because we’re a small, family-owned operation and everything we do is on our own nickel.” The NhRP says that Commerford’s zoo “has a reported annual revenue of $630,210,” as if to suggest it’s big business. Heh.

Commerford may be wrong about Wise’s motivation, but a pure heart and a selfless devotion to the cause of animal rights is not going to reduce Commerford’s lawyer’s bills.

In a prior post I gave some reasons to help see why the “animals are people with rights” claims are obviously wrong. To be the kind of thing that has (or that has the potential to have) legal rights is also to be the kind of thing that has (or that has the potential to have) legal duties. The NhRP’s memorandum of law points out, correctly, that a corporation is a legal person. Is it not outrageous and immoral that a business corporation is a legal person but an elephant is not? Well, no. If someone working for a corporation hits you in a car accident, the corporation is probably liable for his negligence. If an elephant tramples you, it’s your bad look—unless, of course, you have a claim for negligence against the elephant’s owner.

NhRP pushes back on this by arguing that any being that has either rights or duties is a person. It even cites John Chipman Gray for that proposition! You can read Gray yourself to see if you think that’s a fair reading. It’s true that Gray suggests that a being with rights but not duties or duties without rights may be a person, though he questions whether any such being exists (§ 64). And he points (§ 101) to cases where ancient civilizations regarded particular animals as having rights (“cats in ancient Egypt, or white elephants in Siam”). He said there was “no essential difference” between this case and the case of humans under a disability—”the will of another” is attributed to the person “wanting in legal will,” though of course this isn’t really right, since children, the insane, etc., are potentially people with the capacity to exercise their own wills. By the same token he points to cases in the past where animals were regarded as having duties (§ 108):

The most remarkable instances of the treatment of beasts as having legal duties are to be found in the judicial proceedings against them which were had in the Middle Ages. They were summoned, arrested, and imprisoned, had counsel assigned them for their defence, were defended, sometimes successfully, were sentenced and executed. I should like to dwell on this curious development of manners and belief, which is little known, but it is so foreign not only to any actual but to any rational jurisprudence that I do not feel as if I ought to linger on it longer.

Reading everything Gray has to say in context, I have to say it seems to me there’s no way he would defend treating non-human animals as having rights. His discussion of animals with rights mentions the divine cats of Egypt and the sacred white Elephant of Thailand, and it immediately follows the discussion of how the ancient Romans recognized gods as legal persons. He seems to regard the notion as part of a distant, unreasonable past. In short, it seems to me that NhRP is probably misreading Gray.

There are other arguments, too, but I want to add a new one focused on the fact that this is a habeas corpus case. The essence of habeas corpus is unlawful imprisonment. Suppose the judge frees the elephants. Will they be sorry to leave their home at the zoo? Who knows? And where will they go? Where do they want to go? For human beings, freedom is itself something to be valued. But will an elephant in Connecticut be happier or better off being freed? Obviously it won’t be any good for the elephant to wander the streets of Connecticut. The NhRP has an answer to that: order that the elephants be given to the Performing Animal Welfare Society. But suppose the elephants don’t want to be released to the custody of the Performing Animal Welfare Society. Suppose they want to be free. Isn’t that what habeas corpus is for? Well, their desires for freedom aren’t really what the case is about. This just goes to show, in my view anyway, the ridiculousness of the whole project. And what makes it not just ridiculous but harmful is that some small businessman in Connecticut is going to spend a lot of money defending the case.

Look, if you want to improve animal welfare, ask the legislature to pass a law. If you think people shouldn’t be allowed to own elephants, fine, get a law passed. If you think the zoo owner is mistreating his animals and violating animal cruelty laws, file a criminal complaint. If those laws aren’t tough enough, they can be changed. But don’t try to refine fundamental legal categories to suit your personal philosophy on the back of a nature photographer or a small-time zoo owner. There is nothing certain in litigation, but if “the elephants” (by which of course I mean the NhRP and Wise) win, I will eat my shorts. That won’t give Commerford his time or money back. What is the plan: to go from state to state bankrupting small businessmen until some judge somewhere decides he wants to be reversed on appeal?

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