The case of the day is Nonhuman Rights Project, Inc. ex rel. Beulah et al. v. R.W. Commerford & Sons, Inc. (Conn. Super. Ct. 2017). I wrote a polemic about the case back in November 2017. The case was a petition for habeas corpus brought by Steven Wise’s group, the Nonhuman Rights Project, on behalf of several elephants owned by a Connecticut zoo. Can you guess how it turned out?

The first issue was standing. I should say that to me, this is not the key question. “Next friend” standing is sometimes appropriate in habeas cases. I am not going to get into the minutiae of Connecticut’s rules on habeas corpus, but the basic question is: who is Steven Wise to these elephants? Of course there are cases where one person petitions for a writ of habeas corpus on behalf of another—parents for children, guardians for wards, etc. And there is even a category of “next friend,” i.e., a person who ordinarily would not have standing. The judge held that under Connecticut law, at least, it’s necessary for the next friend to have at least some relationship with the real party in interest. Here there was no relationship between the NhRP and the elephants. Indeed, as the judge observed, the people with the real relationship with the elephants were the zookeepers—the people who were being sued! Again, I don’t think standing is the key issue here. But the judge’s discussion does raise the question of why one would think that Steven Wise has any more right to represent the interests of these elephants than do the people who know the elephants best. This illustrates one of the real problems with Wise’s crusade: it’s an attempt to use the courts for essentially legislative purposes, and the “client” is a mere fiction or pawn. In any event, the judge found that the lack of any relationship between the NhRP and the elephants was fatal.

The main question was personhood. The caption to the judge’s discussion here made his views clear: “THE PETITION IS WHOLLY FRIVOLOUS ON ITS FACE.” Yikes. Now, there’s no question that judge failed or refused (depending on how you look at it) to delve into the philosophical, moral, and scientific issues involved. So no doubt the opinion is deeply unsatisfactory to academics.

In addition to the reasons I gave in my earlier posts on this case and the monkey selfie case, let me suggest another consideration. Here goes:

Why does the the NhRP focus on trying to get a court to declare that highly intelligent animals are persons with rights, instead of trying to pass improved animal cruelty laws or even trying to pass more radical statutes, e.g., a law making it illegal to own or keep elephants, say? A cynical view is that if you pass general criminal laws, then when someone violates the law, the government takes the initiative to prosecute the offenders. But if the way we protect animals going forward is through litigation with the animals as plaintiffs, then there will be a regular role for the NhRP in conducting litigation and in shaping the outcomes of particular cases. The NhRP likes to point out that in the past, the law did not consider slaves, for example, as legal persons for many purposes. But once that changed, the former slaves were perfectly capable of asserting their own rights. But if elephants become people, they will never be capable of asserting their own rights and will always need the “help” of the lawyers.