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World-Renowned Philosopher Martha Nussbaum Supports New York Elephant Rights Case

By Lauren Choplin

World-renowned philosopher and University of Chicago Law School Professor Martha C. Nussbaum has submitted an amicus brief to the New York Court of Appeals in support of a habeas corpus petition filed by the Nonhuman Rights Project (NhRP) to free an elephant from the Bronx Zoo to an elephant sanctuary.

Drawing on Professor Nussbaum’s widely acclaimed work on justice and animal rights, the brief “argues that the law requires reformation to protect our modern scientific and philosophical understanding that many animals can live their own meaningful lives and that the Court should reform the law in this case.”

Happy is a 50-year-old Asian elephant who has been held in captivity since 1977 in a one-acre exhibit in the Bronx Zoo, which is managed by the Wildlife Conservation Society. For the last 15 years Happy—the first elephant in the world to demonstrate self-awareness via the mirror test and the first to have habeas corpus hearings to determine the lawfulness of her imprisonment—has lived without the company of other elephants. In May of this year, New York’s highest court agreed to consider the NhRP’s arguments in support of Happy’s legal personhood and right to liberty, marking the first time in history that the highest court of any English-speaking jurisdiction will hear a habeas corpus case brought on behalf of someone other than a human being.

“What philosophy and, more recently, science have understood but the law has not,” Professor Nussbaum writes, “is that elephants are sentient beings who can feel emotion, foster relationships, create communities, and form a conception of the self … This Court has the opportunity to create legal precedent that provides these living creatures the legal right to thrive and survive in ways that coincide with their specific capabilities, and prevent not only the infliction of physical pain, but emotional and psychological injury as well.”

Professor Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed in the Law School and Philosophy Department of the University of Chicago, and a recipient of the 2016 Kyoto Prize in Arts and Philosophy, the 2018 Berggruen Prize, and the 2021 Holberg Prize.

Professor Nussbaum’s brief criticizes the lower court decisions that denied personhood and the right to liberty to the NhRP’s chimpanzee clients Tommy and Kiko and urges the Court of Appeals to adopt the Capabilities Approach to personhood as developed by Professor Nussbaum and Nobel Prize-winning economist Amartya Sen. As detailed in the brief, this approach “embraces the idea that society should examine the capacities of each creature and embrace the approach that a whole life for a creature includes the ability for love, grief, and self-recognition.”

Happy’s case has also received support from experts in elephant behavior cognition and behavior, philosophy, habeas corpus, Catholic theology, and animal law, including ElephantVoices’ Dr. Joyce Poole and legal scholar and Harvard Law School Professor Laurence H. Tribe. In February of 2020, Bronx Supreme Court Justice Alison Y. Tuitt issued a decision that was powerfully supportive of the NhRP’s arguments, concluding that 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.”

Alongside the NhRP’s litigation, our grassroots advocacy campaign on behalf of Happy has gained significant momentum, drawing the support and attention of elected officials such as New York City Council Speaker Corey Johnson and Congresswoman Alexandria Ocasio-Cortez, influential public figures such as Queen guitarist Brian May and actress Mia Farrow, and animal advocates in New York and around the world. In October 2019, Mayor Bill de Blasio commented on Happy’s plight, telling WNYC “something doesn’t feel right” about keeping Happy in the Bronx Zoo. A petition calling for Happy’s release from solitary confinement has 1.4 million signatures and continues to grow.

The NhRP will file our next brief in Happy’s case on Sept. 7th. Oral arguments have not yet been scheduled. For a detailed timeline of Happy’s case, court filings, and decisions, visit this page. 

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