New York’s highest court ruled Happy the elephant isn’t a legal person. Here’s what that says about us.

Last week, the highest court in the state of New York ruled that an elephant is not a legal entity.

The elephant in question is Happy, who has been kept at the Bronx Zoo for the past 45 years and isolated for the past 15. The Nonhuman Rights Project, the non-profit animal rights organization that brought the case on Happy’s behalf, attempted to transfer her from the zoo to a more spacious elephant sanctuary, invoking habeas corpus – a constitutional right to prevent illegal detention.

To get Happy’s release, the Nonhuman Rights Project had to convince a panel of seven judges in New York that she is a “juridical person,” a term for an entity with rights. No animal in the US has ever been granted legal status, so Happy’s case has always been a long shot, but other countries have granted aspects of legal status to forests and water bodies, as well as an orangutan. And as Mitt Romney told a ruffian at the Iowa State Fair in 2011, “Corporations are people, my friend.” (Companies actually benefit from legal personality in the US.)

The Nonhuman Rights Project argued that because elephants suffer in zoo confinement and there is significant evidence that elephants like Happy are autonomous and self-aware, they too should be released under the “grand writ” of habeas corpus. (In 2006, Happy became the first elephant to pass the self-recognition mirror test, demonstrating the ability to distinguish itself from other elephants.)

But in drafting the court’s 5-2 majority decision, Chief Justice Janet DiFiore argued that the granting of habeas corpus to a non-human animal has never been done in the US and that it “would have an enormous destabilizing impact on modern society.”

“The other side has always tried to scare the courts into thinking that if we won a habeas corpus case in the name of an elephant, it would mean we would end farming… and then we would start taking their dogs away,” Steven Wise , founder and president of the Nonhuman Rights Project, told me. But Wise says that “habeas corpus focuses on one thing: the one entity being arrested. In our case, it was Happy.”

New rights for new times

To be fair, it’s not hard to imagine that if a judge ever considers an animal a legal entity, he’ll open the floodgates with petitions to release other animals. But our lack of legal protection for animals has already had a destabilizing impact on modern society, as our industrial breeding of them is a major cause of climate change, air and water pollution, loss of biodiversity and pandemic risk. We should be more concerned with the harms of hoarding rights, not expanding them.

However, I am somewhat concerned about the effect that granting legal personality to individual animals would have on society’s view of animal protection. If that happens, it would be a watershed moment for animal law. But just invoking constitutional rights for species “for which there is robust and abundant scientific evidence of self-awareness and autonomy,” such as elephants and chimpanzees, as the Nonhuman Rights Project website states, could also further cement the common belief that the smarter the an animal is, the more worthy they are of protection (a belief that leads to pretty dark places when applied to humans).

When I asked Wise about this concern, he said, “We are no longer discussing [than Happy’s release]we are not arguing for less.”

Sandra, an orangutan who was kept at the Buenos Aires Zoo for 25 years, was released and transferred to a sanctuary in 2019 after a judge in Argentina granted her legal status.
Juan Mabromata/AFP via Getty Images

The Wildlife Conservation Society, which manages the Bronx Zoo, declined to be interviewed for this story, but referred me to their May 2022 statement issued on the day of the oral arguments in the Happy case, which read in part: “[The Nonhuman Rights Project] are not ‘releasing’ Happy as they intend, but arbitrarily demanding that she be uprooted from her home and transferred to another facility where they would prefer to see her live. This demand is based on a philosophy and does not consider your behavior, history, personality, age and special needs.”

Given that animals are primarily property under the law and the types of systemic abuse that the classification allows, the Nonhuman Rights Project was not surprised by the outcome of Happy’s case. A line in the decision, one on which much of the argument depended and was repeated by other judgeshelps explain why: “…the great writing [habeas corpus] protects the right to liberty of human beings Why they are human with certain fundamental rights of liberty recognized by law”. In other words, Happy cannot be released from confinement on the basic fact that she is not human.

The idea that a right can only be applied to a human simply because he is human has many names: human exceptionalism, anthropocentrism, speciesism. It is the subtext of our relationship to all other animals: we humans (however unequally) enjoy certain rights simply because we are human, while the millions of other species with whom we share the Earth are subject to our whims.

In his dissent, Justice Rowan Wilson called on his colleagues to challenge this exceptionalism: “The majority argument – ​​’this has never been done before’ – is an argument against all progress, an argument that goes against the history of law. Inherently, then, to whom to grant which rights is a normative determination, which changes (and has changed) over time. Wilson added: “The correct approach is not to say ‘this has never been done’ and then give up, but to ask ‘this should be done now even if it has not been done before, and why?'”

Five of the seven judges dropped out for “this has never been done before,” though two did not, and Wise says that is a great sign of progress in itself. The Nonhuman Rights Project filed its first habeas corpus litigation in 2013 and, at the time, “I don’t think there was any [judge] who had any deal with us in the first four years,” Wise told me. “And now we had six judges in New York [who’ve] agreed with us”.

They may receive more support in the coming years: Last month, the Nonhuman Rights Project filed a lawsuit on behalf of three elephants in California and plans to file a similar lawsuit for elephants in a few other states, in addition to India and Israel.

Sentience beyond the animal kingdom

A few days before Happy lost in court, the status of another non-human entity was also questioned. A Google engineer named Blake Lemoine was fired for raising the alarm over his belief that an artificial intelligence (AI) language model he was working on, called LaMDA, had become sentient.

As my colleague Dylan Matthews wrote in his conversations with Lemoine, “LaMDA expresses a deep fear of being turned off by engineers, develops a theory of the difference between ’emotions’ and ‘feelings’… experiences ‘time’”.

The expert consensus is that no, LaMDA is not sentient, even if it is actually good at acting like it is, although that doesn’t mean we should totally rule out the possibility that AI eventually becomes sentient.

But making that determination would require us to have a deeper understanding of what consciousness really is, notes Jeff Sebo, a New York University philosopher who studies animals and artificial intelligence.

“The only mind any of us can directly access is our own, so we have to make inferences about who else might have conscious experiences like ours and what kinds of conscious experiences they might be having,” Sebo said. “I think the only epistemically responsible attitude is a state of uncertainty about what kinds of systems can realize consciousness and sentience, including certain kinds of biological and artificial systems.”

While there was a wave of sympathy for Happy in social media, there was also a lot of derision – and the court ruling – directed at the idea that an elephant should be considered a legal person. Lemoine endured even more scorn for claiming that an AI is conscious.

I felt some of that contempt myself – call it biological exceptionalism. We have so little concern for many of our fellow humans, let alone animals, that caring about an AI’s feelings feels a little rich. But as I read the dissenting opinions on the Happy case, I was reminded that I probably shouldn’t hold that opinion too firmly. The circle of who and what deserves moral consideration has continually expanded, and a widely held view today could be a silly, even monstrous, view decades from now.

The day an elephant is released from a zoo using centuries-old human rights law will only help one elephant, but it will be a milestone in the fight to expand humanity’s moral and legal circle, and it could happen much sooner than you. think. It can also make animal welfare concerns less cognitively complex, even artificial intelligence, a little less awkward — and perhaps prepare us for a future where sentience is much more widely recognized than it is today.

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