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Elephants Are People Too

close-up photograph of elephant in the wild

37 years ago, the daughter of a Pakistani dictator was gifted a 1-year-old Asian Elephant calf named Kaavan. Kaavan ended up in Marghazar Zoo, a run-down facility in Islamabad. He had one elephant companion; a female named Saheli. When Saheli died in 2012, Kavaan spent days in his enclosure with her dead body before she was finally removed. Elephants are known to experience grief in response to the death of their companions. Since then, Kaavan has spent all of his time apart from other elephants, earning him the nickname “the loneliest elephant.” He has spent much of his existence in chains. With the help of animal rescue organization Four Paws International and Free the Wild, the animal welfare organization started by pop legend Cher, Kaavan has been freed from the zoo at which he was held captive and is now in an elephant sanctuary.

Kaavan was granted freedom from Marghazar Zoo as a result of a decision made by a high court in Pakistan. Chief Justice Athar Minallah began his opinion with a reflection about COVID-19. He notes that for the first time in memorable human history, human beings are confined to small spaces, restricted from interacting with friends and family, and limited in their range of autonomous choices. He argues that perhaps our own confinement provides us with an ideal opportunity to reflect on the ways in which we treat non-human animals, creatures who also enjoy social relationships, space to move freely, and a range of options when it comes to how, where, and with whom they will spend their time. In his ruling, Chief Justice Minallah poses the following question,

“Has nature forced the human race to go into ‘captivity’ so as make it realize its dependence for survival on other beings possessed with a similar gift, i.e., life? Is it an opportunity for humans to introspect and relate to the pain and distress suffered by other living beings, animal species, when they are subjugated and kept in captivity and denied the conditions and habitats created for their survival by the Creator, merely for momentary entertainment?”

Elephants are complex creatures who live rich social lives. They are highly intelligent and have excellent capacities for memory. Like all social beings, elephants thrive when they are in one another’s company. They flourish when they are able to do the things that elephants do when left unmolested. Humans have long benefitted from treating non-human animals as things, as instruments for human pleasure. We eat them, we conduct research on them, we hunt them for fun, and we force them to entertain us even when doing so is contrary to their own interests. Justice Minallah suggests that now is a moment, long overdue, at which we can start to view non-human animals with empathy and compassion, especially in cases in which their cognitive architecture is so similar to our own.

The court’s ruling on Kaavan’s case provided the conditions under which he was freed, but the question remained: to where and how does one transport a 5-ton pachyderm? Stunningly, the answer turned out to be: 4,000 miles away, to Kulen Prom Tep Wildlife Sanctuary in Cambodia — by plane. The Sanctuary is over 30,000 acres — space that Kaavan will get to explore with many other elephants.

Meanwhile, at the Bronx Zoo in the United States, a 49-year-old Asian Elephant named Happy is confined under similar conditions. Happy has been at the Bronx Zoo for 42 years. For the last decade, he has been held apart from other elephants in a one-acre enclosure. The Zoo insists that Happy is treated humanely. The Non-Human Rights Project, an animal advocacy group led by attorney Steven Wise that is dedicated to securing legal rights for non-human animals, disagrees. In recent years, the NhRP has also secured habeas corpus hearings for Hercules and Leo, the first non-human animals to be granted such a hearing. Though the judge in that case did not grant that the chimpanzees were legal persons, he affirmed the basic moral idea behind the movement. Judge Fahey wrote,

“The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.”

The NhRP has argued that Happy is being unlawfully imprisoned at the zoo. The central issue at play in the case for freeing Happy is whether he is a person with rights to habeas corpus protection. A person has a right to bodily autonomy which carries with it a right not to be unfairly imprisoned or held against their will. So, for example, if a person has been detained or imprisoned and they believe that they have been put in that position unlawfully, they have a right to file a habeas corpus brief with the court in an attempt to be released from confinement. The argument is that, like people, non-human animals, or, at least, some non-human animals, have the same right to bodily autonomy and the same entitlement to protection against unlawful imprisonment as human beings do.

A common objection and, indeed, one of the objections that was raised by one of the justices at the most recent hearing on Happy’s case in front of the New York Supreme Court, Appellate Division, First Judicial Department is that if we grant that elephants and chimpanzees are legal persons, we’ll have to recognize that they have the other rights of persons — the right to vote, the right to bear arms, etc. This strikes many as both absurd and dangerous. In response to this concern Wise points out that there are many entities to which the courts have granted limited personhood status, including corporations. When the NhRP insists that Happy is a person in the limited sense that he has the right to bodily autonomy and should not be imprisoned unlawfully, they are not also insisting that elephants have the right to free speech or to the free exercise of religion, or any other such absurdities.

Another concern that was raised by more than one of the justices in Happy’s most recent hearing is that the question of elephant personhood shouldn’t be an issue for the courts to decide. The appropriate body to make that decision is the legislature. If that body wants to declare by statute that certain animals should be treated as persons, they are free to do so, but barring that, such dramatic action that has consequences that are so wide in scope would be judicial overreach. In response, Wise points out that a writ of habeas corpus is a measure of common law. The common law is established by judicial decisions and precedent rather than by statute. As such, the courts don’t need to, and indeed shouldn’t, keep Happy imprisoned until such time as Congress decides to pass legislation protecting these animals, which it is unlikely ever to do. For good reason, habeas corpus writs provide courts with the ability to quickly remove persons from unlawful detainment. Wise argues that they should take the opportunity to do so in Happy’s case.

These legal questions are intimately connected to critical moral questions. Do non-human animals have rights? The concerns posed by the court suggest a way of answering this question that is supported by various social contract theories. According to a basic version of this kind of theory, fully free humans come together to form a society with the understanding that it will be in everyone’s self-interest to give up some of their liberties in exchange for certain protections. The social structure of society is granted legitimacy by the fact that the rational people involved in the decision-making consented to it. The trouble is, not all sentient beings participated in constructing the contract. Non-human animals are entitled to rights and protections only if the decision-makers have agreed to such protections. According to this view, in our modern time, elephants and chimpanzees only have rights if legislatures pass statues granting them those rights.

One shortcoming of social contract theories is that they have no mechanism for ensuring protection of the vulnerable. If decision-makers don’t want to provide protections, at-risk populations are out of luck. This means that elephants and chimpanzees might remain unprotected, and it also might mean that oppressed groups like women and minorities who weren’t permitted to be involved in the original decision-making aren’t guaranteed protections either.

An alternative approach, and an approach consistent with the strategy of the Non-Human Rights project, is to insist that all sentient beings have ownership over their own bodies and, to the extent that they can exercise autonomy without harming others, should be allowed to do so. This approach respects the inherent dignity of all life. It recognizes that Happy should be released from captivity, not because it is the will of the people, but because Happy is not the kind of entity that ever should have been “kept”; Happy is a “who,” not an “it.”

Saving Animals in Emergencies: The California Wildfires

Photograph of two men and a dog standing in a burned structure

California is facing some of the most devastating fires that it has seen in years. Camp Fire, Woosley Fire, and Hill Fire spread over Paradise and Los Angeles, CA destroying more than 125,000 acres and counting. As families are being forced to leave their homes, the question arises for many: “What do we bring, what do we leave?” Unfortunately for many, this becomes a question of what to do with their pets and other domesticated animals.

Local shelters and relocated farms are options for families to move their dogs, cats, horses, and other animals. When local shelters become full, citizens have sought out local law enforcements or agencies that protect animals. One such agency is Ride On, a therapeutic horsemanship program owned by Abigail Sietsma. Sietsema and her father worked relentlessly to address emergency calls to rescue horses from barns amid the Hill Fire and Woolsey Fire. The executive officer of Ride On, Bryan McQueeney, described the rescue process as a form of art. “You have to really control the energy of people around you,” he says. Horses are able to pick up on when people around them are anxious and it can make an already dangerous and time-sensitive situation that much more difficult.

Emergencies like the California fires make it difficult to protect the lives of humans and animals alike. McQueeny says, “Human lives take priority but Los Angeles County Animal Care and Control, which has set up centers in safe areas, is collaborating with fire and sheriff departments. As of the latest update on Saturday night, the agency had 591 horses, ponies and donkeys in its care, along with llamas, pigs, goats and even a tortoise.” With all of these resources going into protecting the lives of the animals, it begs the question, do we have a moral obligation to help them in emergencies?

According to virtue ethics, emotions are key in ethical decision making. Humans are typically emotionally attached to their pets or farm animals in some way. Therefore, it is ethical to spend the resources to save them in emergencies.  Some would even argue that it would be negligent to leave them alone to die. Animals, for the most part, are dependent on humans to help them and according to the ethics of care, with this relationship, there is an obligation for humans to help out their loved pets. It is considered virtuous, responsible, and compassionate to look after and go out of the way to care for animals in times of need. This belief, that it is good to rescue animals, is socially praised.

Along with being socially praised, the rescuing of animals has been found to unite communities. McQueeny describes the phenomena: “I have been around a fire in a horse area, it is amazing to me how the equestrian community rallies. It’s complicated, it is hard, but I am always impressed that the horse community will jump in. They will move heaven and earth to make sure these horses are taken care of.” The rescue of animals unites communities and gives them hope in situations where hope can seem scarce.

However, all of the time and energy that goes into this rescue isn’t always the most efficient option. Not to mention, some animals like horses take up even more resources to feed them, clean them, and house them once in safe environments. One may argue that we should value human life and use the resources allocated to horses, for example, towards helping the people who have been displaced from their homes. Some animals, such as a pet cat, are easy to relocate, but larger pets like horses or wild animals in zoos create many additional challenges.  

The LA Zoo has recently faced the problem of what to do with their zoo animals. Smoke in the surrounding air makes it hard for animals to breathe and increases the risk of disease. However, precautionary measures to move the animals isn’t always the best option. Moving animals can be more dangerous because moving them away from their familiar habitat increases the risk of disease and death. The most that the zoo staff  can do in these cases is to establish evacuation plans for fires, earthquakes, and hurricanes and move animals only if necessary.

If the resources are available, saving household pets and animals would be ideal for many families. Yet taking the extra time to relocate animals in the fire adds additional risk to the family members and more smoke exposure time. The animal rescue personnel even risk their lives to go into the fire zones to save them, but despite their heroic reputation, the California fires make us reconsider: should we bring our animals or leave them?