THE ELEPHANT IN THE (COURT)ROOM: Happy is an elephant, but is she also a person?

Elephants, are among the most intelligent, long lived, and sentient of nonhuman animals, and, arguably, they’re the most sympathetic. As moral agents, elephants are better than humans.

JILL LEPORE: The subject of the most important animal-rights case of the 21st century was born in Thailand during the Vietnam War. Very soon after that, a tousle-haired baby, she became trapped in human history. She was captured, locked in a cage, trucked to the coast, and loaded onto a roaring 747 that soared across the Pacific until it made landfall in the United States. She spent her earliest years in Florida, not far from Disney World, before she was shipped to Texas. In 1977, when she was 5 or 6, more men hauled her onto another truck and shipped her to New York, to a spot about four miles north of Yankee Stadium: the Bronx Zoo.

In the wild, barely weaned, she’d have been living with her family—her sisters, her cousins, her aunts, and her mother—touching and nuzzling and rubbing and smelling and calling to each other almost constantly. Instead, after she landed at the zoo and for years after, she gave rides to the schoolchildren of New York and performed tricks, sometimes wearing a blue-and-black polka-dotted dress. Today, in her 50s and retired, she lives alone in a one-acre enclosure in a bleak, bamboo-shrouded Bronx Zoo exhibit called, without irony, “Wild Asia”…

Next year, maybe as soon as January, the New York Court of Appeals will hear oral arguments regarding a petition of habeas corpus that alleges that Happy’s detention is unlawful because, under U.S. law, she is a person. She is also an elephant. A “person” is something of a legal fiction. Under U.S. law, a corporation can be a person. So can a ship. “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air”… In 2019, the Yurok tribe in Northern California decreed that the Klamath River is a person. Some forms of artificial intelligence might one day become persons…

But can an elephant be a person? No case like this has ever reached so high a court, anywhere in the English-speaking world. The elephant suit might be an edge case, but it is by no means a frivolous case. In an age of mass extinction and climate catastrophe, the questions it raises, about the relationship between humans, animals, and the natural world, concern the future of life on Earth, questions that much existing law is catastrophically ill-equipped to address.

The U.S. Constitution, written in Philadelphia in 1787, rests on a chain-of-being conception of personhood. The men who wrote the Constitution not only made no provision for animals or lakes or any part of the natural world but also made no provision for women or children… New federal and international laws could help, but Congress barely functions and most environmental treaties are either nonbinding or not enforced and, in any event, the United States is not party to many of them, having largely withdrawn from the world.

With so many legal, political, and constitutional avenues closed, the most promising strategy, influenced by Indigenous law, has been to establish the “rights of nature.” One such approach relies on property law. Karen Bradshaw, a law professor at Arizona State University, argues that wildlife such as bison and elephants have ancestral lands, and that they use, mark, and protect their territory. “Deer do not hire lawyers,” she writes in a new book, Wildlife as Property Owners, but if deer did hire lawyers, they’d be able to claim that, under the logic of the law of property, they should own their habitats.

Another approach, the one taken on behalf of Happy by the Nonhuman Rights Project (NhRP), a sort of animal ACLU, relies on common law. It takes inspiration from abolitionists who used habeas corpus petitions to establish the personhood, and gain the freedom, of people held in bondage. Both strategies risk pitting animal-rights activists against environmentalists, two movements that have often found themselves at odds. (Environmentalists, for instance, wanted wolves in national parks, but accepted that wolves outside the park could be shot by hunters and ranchers.)

This case isn’t about an elephant. It’s about the elephant in the courtroom: the place of the natural world in laws and constitutions written for humankind. In the wild, the elephant is a keystone species; if it falls, its entire ecosystem can collapse. In the courts, elephant personhood is a keystone argument, the argument on which all other animal-rights and even environmental arguments could conceivably depend. Elephants, the largest land mammal, are among the most intelligent, long lived, and sentient of nonhuman animals, and, arguably, they’re the most sympathetic.

As moral agents, elephants are better than humans. They’re not quite as clever, but, as a matter of social intelligence, they’re more clever than every other animal except apes and, possibly, bottlenose dolphins, and they’re more decent than humans. They live in families; they protect their young; they grieve their dead; they don’t eat other animals, and they don’t cage, isolate, and torture them. Elephants appear to possess a theory of mind: They seem to understand themselves as individuals, with thoughts that differ from the thoughts of other creatures. They suffer, and they understand suffering…

An elephant is not a man, and an elephant cannot write history. But an elephant might very well be a person, and every elephant has a history. The NhRP says that no elephant should live alone; the Bronx Zoo says this particular elephant should, because of her past: “Happy has a history of not interacting well with other elephants,” the zoo’s director, James Breheny, said in his affidavit. What if another way to consider this case, then, is biographical? It wouldn’t answer the question of what Happy wants, but it would contain within it a tale of atrocity and slaughter, care and tenderness, loss upon loss: the unraveling and un-constituting of worlds…

Happy’s plight is as serious and desperate as the consequences of the court’s eventual ruling are unknown and unknowable and, quite possibly, profound. She stands and stares and lifts one foot. She swings her trunk. She sways, watching the monorail pass by, again and again and again. The New York Court of Appeals could hear the case as early as this winter… Courtroom arguments about elephant personhood have taken place before… But one day soon, an elephant will stand, metaphorically, at the courtroom door, a great gray emissary from the natural world, wild. She will rumble, raise her trunk, and trumpet, piercing the uncanny quiet. SOURCE…

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