What, or who, is Happy? Is it a beautiful animal with a cheerful name, fun to go and see with the children in the zoo? Or is she a 47-year-old depressed lady who has been robbed of her contacts and jailed for no reason?
The New York Court of Appeal must rule on this. Happy is a 47-year-old Asian elephant who resides at the Bronx Zoo. It is a special animal: Happy is the first elephant in which self-awareness has been established through a test.
An animal as a person
That explains the great media attention for the case brought by the Nonhuman Rights Project (NhRp). That demands the recognition that Happy is a ‘person’ with associated rights. According to this civil rights organization, she is in solitary confinement at the New York zoo against her will. That would be cruel, because elephants are social animals that live in a large area in the wild. Happy would be better off in an elephant sanctuary, half in the wild.
The zoo’s management believes that the elephant has contact with a congener – albeit through a fence – and that she is treated with respect. Happy has not asked the NhRp to act on its behalf, and that is not necessary at all, according to the management. He suspects the NhRp of wanting to make keeping animals in zoos impossible.
The NHRP relies on the development of thinking about habeas corpus, an ancient rule of law whereby a person may be imprisoned only on court order. Elephants are close to people and are therefore entitled to ‘physical freedom’, according to NhRp’s lawyer.
no merchandise
Philosopher Erno Eskens, who has a PhD in animal rights and is an animal activist himself, is following the case closely. “The NhRp is in line with the discussion about that habeas corpus: in 1772 a slave thought that he could not be shipped as merchandise. The judge went along with that. Thus the enslaved person became a legal subject.”
When the NhRp referred to that old case, the American judge felt wet, according to Eskens. “He immediately asked the NhRp what the implications were for animal testing, dog lovers or livestock farming. The lawyer said that they had nothing to fear, but that is of course nonsense. The NhRp is taking cases all over the US, often about pathetic large mammals, and wants to claim some kind of human rights for many more animal species. Because why should Happy deserve rights and not all those other animals? The Happy case is intended to force a levee breach.”
Equivalent position
The NhRp’s aim is in line with a trend of looking at animals differently, says Franck Meijboom, theologian and senior lecturer in animal ethics at the Faculty of Veterinary Medicine in Utrecht. “More beings are already getting legal rights. It started with rich, white men and expanded. Now certain animals also come within the ‘moral circle’.” That does cause a ‘tension’. “Here we officially attribute intrinsic value to animals, but the consequences of this are still quite vague. You may trade, lock up or slaughter animals, you may not do that with your children. If you want a truly equal position for humans and animals, you can grant animals full legal personality. But then you can do a lot less with animals.”
According to Meijboom, current livestock farming mainly revolves around questions about welfare: ‘Does the animal have a good life?’ Organizations such as the NhRp have a different starting point: they see Happy as a person whose human rights be violated. “Such animal rights activists see the deprivation of freedom as the biggest problem. For them, pigs, chickens and cows in captivity are unacceptable anyway. That means we should also say goodbye to our cat and dog.”
Chimpansee Cecilia in beer Chucho
The Happy-as-person debate is not unique, Eskens says. “In Argentina, chimpanzee Cecilia has been declared a legal subject, in Colombia bear Chucho, and in Pakistan elephant Kavaan: they are creatures with their own perspective on the world. You can’t just lock them up.”
According to Eskens, their special status has not yet led to an overall improvement for animals. But thinking about it is indeed shifting internationally, including in the US, Eskens sees. “A few years ago, judges there resolutely brushed aside cases, now they listen more to the arguments. It has become part of public debate. Even if the judge soon says: ‘Happy is not a person’, people will still be thinking.”
What happens if Happy and her fellow animals become ‘persons’? Meijboom sees a changing attitude towards animals, but not the end of animal husbandry. “Although a reduction in the number of animals is not unfavorable for the climate problem. On the other hand, the relationship between humans and animals can be beneficial for both. Then giving up is not necessarily a gain.”
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