The November 16, 2021 issue of The Atlantic contained an article by the journalist and Harvard University American History professor Jill Lepore titled “The Elephant Who Could Be a Person.” According to the article’s lede, “The most important animal-rights case of the 21st century revolves around an unlikely subject.” The case involved an animal rights organization arguing that a female Asian elephant named Happy was being illegally detained by the Bronx Zoo. Because Happy lived most of her life in solitary confinement, an unfortunate situation for a species that is extremely social, the Nonhuman Rights Group claimed she had a right to habeas corpus. If Happy were to be freed from the zoo, she would be taken to a sanctuary to live with other elephants.
The NRG’s concern was discounted by the Wildlife Conservation Society which operates the zoo and has insisted that the elephant is well taken care of. Central to the case was the question of whether Happy should be considered a person. The NRG argued for her personhood because in 2005 she passed the mirror recognition test (a method for attempting to determine the presence of physiological and cognitive self-awareness) where she touched an X painted on her forehead. This touching action was considered to be evidence of self awareness and therefore a sense of personhood.
For Lepore, the case has huge implications for fighting climate change and preserving biodiversity:
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.
Lepore believes that in the US the legal roots of these questions go very deep indeed: “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 . . . ” She continues
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, arguable, they’re the most sympathetic.
Last June, Happy’s legal team lost their case in a 5-2 decision. Writing for the majority, Chief Judge Janet DiFiore said that “While no one disputes that elephants are intelligent beings deserving of proper care and compassion . . . we reject petitioner’s arguments that it is entitled to seek the remedy of habeas corpus on Happy’s behalf. Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.” But both dissenting opinions found much merit in NRG’s position, with one of the dissenting judges, Judge Rowan Wilson, writing “When the majority answers, ‘No, animals cannot have rights,’ I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.” Even one of the judges who concurred with the majority wrote that the case presented “a deep dilemma of ethics and policy that demands our attention. The issue of whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. Ultimately we will not be able to ignore it.”
If we want to consider an elephant, or any other animal for that matter, as a person, we need to begin with some definition of personhood. The Oxford Dictionary of Philosophy offers a list of the “central phenomena of personhood; rationality, command of language, self-consciousness, control or agency, and moral worth or title to respect, . . .” In Happy’s court case, the majority agreed that the elephant was self-aware and intelligent, but as a nonhuman it was not regarded to be in the same legal category as human persons. In so doing, the court’s majority followed in what appears to be a generally accepted legal definition personhood. According to the Oxford Dictionary of Law, a legal person “‘is typically defined as a being, entity, or unit which can bear legal rights and duties . . . ” This definition goes on to describe different types of “beings, entities, or units” which are considered legal persons, but also mentions one major exception: “By contrast animals, it is generally said, are unable to assume any legal rights: they have neither the capacity for rights nor the competence to enter personally into legal relations (which can only be had by persons).”
Another term appearing in the Happy court case was intelligence, primarily because Happy’s legal advocates, the NRG, used the mirror recognition test to provide evidence of Happy’s sense of self-consciousness. But the mirror recognition test is not without its critics. As a test used to show that humans were almost universally able to pass a mirror-based self-recognition test by 24 months of age, recent research has shown that the test is successful with children from Western nations, but not so much with children from non-Western nations. Similarly, the test has been successful with some elephants but not others, and a total failure with other species. Reporting his research findings using the mirror test with elephants, Joshua Plotnik believes that “the mark test can be difficult to apply across species because it assumes that a particular animal will be interested in something weird on their body.”
Science is only beginning to explore the possibility that nonhuman species are capable of possessing intelligence and personhood. Any effort to identify the presence of cognitive activity in animals needs to avoid using measures that are appropriate for humans but not necessarily for other species. In his article “Animal Intelligence” appearing in the Cambridge Handbook of Intelligence, Thomas Zentall, Professor of Psychology at the University of Kentucky, describes what scientists need to avoid and what to keep in mind in this area of research.
The ability to assess the intelligence of other species has been constrained because it is not always easy to communicate to other species what we require of them. Furthermore, we tend to define the tasks with procedures designed for us rather than for the species in question. The appropriate assessment of animal intelligence is important, however, because it has demonstrated that although the human capacity for intelligent behavior quantitatively surpasses that of other animals, qualitatively it is not as different as we generally believe. Furthermore, the intelligent behavior of other species demonstrates that although language and culture contribute to human intelligence, they are clearly not necessary.
If Lepore is correct in saying that Happy’s case is the first to have “ever reached so high a court, anywhere in the English-speaking world,” then we have a long way to go in our court systems regarding the legal status of personhood for animals. If we are to develop a definition of legal person which includes nonhuman animals, we need to move beyond the American legal realm and explore what definitions and applications of the term person can be found in other contexts. One approach would be to become more familiar with Indigenous peoples’ more inclusive understanding of personhood that goes beyond the human. For example, in New Zealand, for a Maori tribe, a river or mountain might be an ancestor. This worldview was a significant factor in a court’s decision to grant personhood to the Whanganui River and the forest Te Urewera. Closer to home, Edward Valandra, a Sicangu Lakota (enrolled) from the Rosebud Sioux Reservation and a professor at Native and non-Native colleges and universities, provides a Native American view:
. . . Phil Wambli Nunpa, the Sicangu Lakota Treaty Council’s executive director, . . . explains that “water is alive: we call it mni wiconi, water is life.” That water is alive—and therefore possesses personality or personhood—defines our cultural response to the DAPL [Dakota Access Pipeline]. Our definition challenges the West’s anthropocentrism, which accords person/peoplehood only to humans. Hence, the Western way of life would both deny and defy water as having personhood. Yet the United States can arbitrarily recognize fictional entities like corporations as legal persons, while denying personhood to humans who become subject to the Thirteenth Amendment’s slavery exception.
I’m hoping that this is a time where attitudes toward our fellow nonhuman beings are profoundly changing. Many people like myself are listening closely to what Indigenous wisdom has to teach. Scientists are exploring ways to understand how nonhumans experience the world and are beginning to interpret outward behaviors as indications of inner states of consciousness and intelligence. Two books about these efforts are Are We Smart Enough to Know How Smart Animals Are? by Frans de Waal and An Immense World: How Animal Senses Reveal the Hidden Realms Around Us by Ed Yong. (Dog lovers might enjoy Inside of a Dog: What Dogs See, Smell, and Know by Alexandra Horowitz.) Western Christians are beginning to see helpful developments within Christian theology. See for example, Ask the Beasts: Darwin and the Love of God, by Elizabeth Johnson. In an article titled “We humans need to open our minds to the personhood of nonhuman animals,” Franciscan Fr. Daniel P. Horan, director of the Center for Spirituality and professor of philosophy, religious studies and theology at Saint Mary’s College in Notre Dame, Indiana, writes
For so much of our modern human history, we have presumed our absolute uniqueness as a species, denying the possibility of intelligence, emotion, moral reasoning, relationship building, and even kinds of religious experience for nonhuman animals. We simply assume that other creatures are, as René Descartes argued in the early 17th century, mere fleshy machines that only simulate feelings.
It doesn’t take much effort to see how such a rigid anthropocentrism, what the British moral theologian David Clough has called “human separatism,” has contributed to our abominable treatment of nonhuman animals over the years — from hunting to extinction and factory farming, to scientific experimentation, to circuses and zoos.
Regardless of whether the United States courts grant some nonhuman animals legal rights . . ., I believe we humans need to adjust our sense of the more-than-human world.
As we saw in Happy’s case, Judge Rowan Wilson was concerned that the court’s denial of habeas corpus for Happy denigrated “the human capacity for understanding, empathy and compassion.” Apparently, arguing in US courts for the legal personhood of animals is not going to succeed in the foreseeable future. But we can individually and as a society continue to develop our intellectual, moral, and spiritual comprehension of animals’ inner lives. Of course, artists and writers have long recognized animals as vital presences. See for example James Wright’s extraordinary poem “A Blessing.”
PS: Highly recommended: The Elephant Whisperers which recently won the Oscar for Best Documentary Short Film, currently streaming on Netflix.