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South African Judge Submits Brief in Support of Elephant Rights Case

By Steven Wise

Edwin Cameron—a retired Justice of South Africa’s Constitutional Court appointed by Nelson Mandela, Inspecting Judge of Correctional Services, and Chancellor of Stellenbosch University—has submitted an amicus curiae (“friend of the court”) brief to New York’s Court of Appeals in support of the Nonhuman Rights Project’s landmark habeas corpus case demanding the right to bodily liberty of an elephant named Happy held alone in captivity in the Bronx Zoo. Justice Cameron has worked for human rights and to secure the South African Constitution’s sexual orientation protection.

In his brief, Justice Cameron explains that South African Law comes from English common law and Roman-Dutch and indigenous law. South African scholars note that the law may “confer legal personality upon any entity that it sees fit…” and “person” refers to an entity capable of legal rights or duties. The idea that protection of nonhuman animals merely involves “indirect views to humanity” is “unpersuasive” for it “skims over issues” and we have “direct moral duties to animals.” It is “the more powerfully forward-looking perspective … becoming part of South African law.”

In a 2007 dissent, Justice Cameron wrote: “Animals have no voice of their own. Like slaves under Roman law, they are the objects of the law, without being its subjects.” Ten years later the Constitutional Court would now write: “The rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on individuals as individuals.”

How do the South African Constitution’s values and rights “spur common law development extending rights to nonhuman animals?”

First, he explains, though the Constitution refers to “human dignity … the right and value to dignity may be interpreted to extend beyond human beings …” Professor Martha Nussbaum’s “capability approach” is “a persuasive legal bridge to legal personhood that embraces nonhuman animals.”

Second, “freedom … expressly extends to ’bodily integrity.’”

Third, equality is seen as “the bedrock of our constitutional architecture … South African law may develop to include a proscription of discrimination on the grounds of irrational and morally unwanted differentiation between humans and other sentient beings …”

“These postulated developments are redolent of when women and Black people were systematically excluded, sidelined, disprivileged, subordinated and dehumanized.” Citing Professor Bonita Meyersfeld, he writes, “This theme is persuasively articulated by another leading South African scholar, Professor Meyersfeld. She notes that ‘there is a common theme between the historic discrimination against women and black people, on the one hand, and, on the other, discrimination against non-human animals … This is not to say that women, black people and animals share the same characteristics or that their experiences of cruelty and oppression are equal or equivalent. The point of connection, rather, is the way the dominant group (men, white people, humans) exploit their dominance …’”

Justice Cameron concluded Happy should win her habeas corpus right to bodily liberty and be released to a sanctuary.

This is the sixth brief submitted in support of Happy’s right to liberty. The authors of the briefs currently total 28 people, including Martha C. Nussbaum (Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago), Christine M. Korsgaard (Arthur Kingsley Porter Research Professor of Philosophy, Harvard University), a group of six expert habeas corpus practitioners and scholars, a group of 14 philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behavior, and the philosophy of biology, and a group of five Catholic theologians with expertise in Catholic moral theology, ethics, animal ethics, ecological theology, theology and science, and bioethics.

For a detailed timeline of Happy’s case, court filings, and decisions, visit this page. Find all the latest on the fight for Happy’s freedom and ways to take action on our new Free Happy campaign page.

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