Why the court should free Happy the unhappy elephant
Should the law recognize an elephant’s right to be released from solitary confinement? The New York State Court of Appeals — the highest court in New York — considered this question May 18. At issue, an Asian elephant named Happy. But happy she is not.
Elephants are profoundly social animals, flourishing best in a hierarchically structured herd. Despite this, Happy has no contact with other elephants. She has spent the last 16 years in isolation at the Bronx Zoo, alternating between a small outdoor exhibit and a windowless, cement structure. Outdoors, she is confined to a mere 1.15 acre lot. Indoors, she is confined to a barred cage, just over twice the length of her body.
Under such conditions of severe deprivation, Happy cannot meet her physical or psychological needs. She is subject to chronic stress. Happy spends her days exhibiting “stereotypic” behaviors, fixed behaviors with no purpose. For humans, this involves repetitively nodding one’s head, rocking back and forth, or waving one’s hands. For Happy, this involves repetitively swinging her trunk, swaying back and forth and lifting her feet.
The Nonhuman Rights Project filed a writ of habeas corpus with New York state asking it to recognize Happy’s right to be released from confinement. The proposal: to transfer her to an elephant sanctuary where she can roam, swim and perhaps most important, enjoy companionship of other elephants.
The problem is under the law everything is either a person or a thing. There’s no middle ground, and courts have assumed all nonhuman animals are things. But Happy is clearly more like a person than she is like a thing. In a 2020 hearing in The Nonhuman Rights Project Inc. v Breheny, Justice Alison Tuitt recognized: “Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.”
We agree, and we contend Happy is entitled to liberty. For that reason, we — three philosophers — filed an amicus brief with the court in which we argued Happy’s complex psychological capacities give her strong interests in liberty.
Some who wish to deny Happy her right to liberty argue individuals can have rights only if they can have moral duties. They argue since elephants cannot have moral duties, they cannot have rights.
But this has absurd implications. It implies humans who do not have the abilities required for them to be subject to moral requirements — such as infants and people with profound cognitive disabilities — lack rights.
Defenders of such views have attempted to explain why these humans have rights but elephants do not. They say these humans have rights because they are members of a species that typically or characteristically possess such moral abilities . ... A better explanation of why every human being has a right to bodily liberty is they have strong interests this right protects. Since Happy has the same strong interests, the court should recognize Happy’s right to be freed from solitary confinement.