Below is an essay inspired by the NhRP’s client Happy, written by longtime NhRP supporter Thalia Field and excerpted from her forthcoming book Personhood (New Directions Publishing). Thalia is an author known for her innovative fiction who has taught in the Literary Arts department at Brown University since 2000. Thank you Thalia for your support for Happy’s right to liberty and release to a sanctuary and for sharing this essay with us!
Happy/That you have the body (The Mirror Test)
By Thalia Field, forthcoming in PERSONHOOD, New Directions Publishing
Everybody mentions the elephant in the room.
“The first Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the ‘great object’ of the writ of habeas corpus is ‘the liberation of those who may be imprisoned without sufficient cause.'”
Habeus Corpus: that you have the body
Habeus Corpus relief: that you have freedom for the body
Happy lives in a solitary pen, despite the fact that elephants are herd animals and female elephants form life-long bonds. The Bronx Zoo closed its elephant program, but continues, after forty years, to hold Happy in an enclosure not larger than a few times her body length.
If the body is not a thing under common or natural law, the body may have the right not to be imprisoned, be as it may that for all beings the body itself is already a form of prison. Some prisons, for example, are very small and live fast and briefly, burdened with constant hunger or fear, while other bodies grow enmeshed with other bodies, prisons alongside prisons, the layered planet, eons of embodied wonder, color and kind morphing fortunes from below the surface to the outer atmosphere, and yet each prison lasts the exact length as its life, before release is secured, before forms transform, before/after the prison-body in every variety of conscious mind means everything and also nothing to other some-bodies so that anybody should imply its very release/relief to not be just anything, ever.
“The writ of habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds for restraint and detention.”
The elephant in the room has a name, we’ve called her Happy. Stolen with her siblings from their herd in Thailand, named for Disney dwarves and flown into the U.S., “That same year, Sleepy died, and the corporation relocated Happy, Grumpy, Sneezy, Doc, Dopey and Bashful to the still operational Lion County Safari, in Loxahatchee, Florida. Happy and Grumpy were sent to the Bronx Zoo before Grumpy was euthanized after being attacked by two other elephants. Happy is alone and has been for forty years.”
June 15, 1215, Runnymede, near Windsor, England. King John signs the Magna Carta, of which the 29th clause says: “No man shall be arrested or imprisoned…except by the lawful judgment of his peers and by the law of the land.”
The King, Constables, even local sheriffs had selectively locked people up, until Habeus Corpus undermined their flimsy pretexts. Centuries later, across an ocean, James Madison argued that the same protection should be written into the U.S. Bill of Rights.
MR WISE: So we must show that Happy is a person. The way we show Happy is a person is by implicating the Court of Appeals case from Byrn from 1972. Byrn made it clear that being a person and being a human being are not synonymous…In that case, it had to do with a person– with if it was a human being who was a fetus, the Court said that while she was still a human, a fetus was not a person. It made it clear that personhood is an issue not of biology, but it has to be a matter of public policy.
Mirror Self-Recognition/Mark test
Who deserves a person’s relief? Through the man-made looking-glass, creatures get tested against reflective surfaces, to see ourselves as we see them, and if they’ll clean their faces as we mark them, we proclaim they’ve mastered our Mirror Self-Recognition test (MSR), and so possess some elusive potential.
Young human children often don’t want to clean their faces, and fail the test.
Happy is free-born and free-spirited, and demonstrates the definition of free, which is legally called “autonomy.”
Autonomy asks you to decide whether or not to clean your face.
And so arguments back and forth about the nature of law, the potential elusive designation of persons, how one or the other should protect freedom and autonomy, both of which Happy could demonstrate even more if not imprisoned against her will.
THE COURT: Are you saying that maybe Happy is unhappy in the Bronx Zoo?
MR WISE: …Yes…The question is not whether the Bronx Zoo is treating her well, or whether it’s not treating her well, or whether they are giving her medical care, or they are not. The question is whether or not Happy should be confined there at all.
Non-human animals mostly have one actual right in America — to be the recipients of trusts. So, Mr Wise argues, let’s add a second simple right: to not be arbitrarily confined. The Supreme Court already says you can’t “look at a single characteristic and deprive an entity of all of the rights because of a single characteristic.” Happy is an elephant. That’s a single characteristic.
On the Mirror Stage
But the mirror splits an object from oneself, to own the potential elusive person like a piece of furniture, a king among things, to be seen and sat on, to be cared for, but also to uphold yourself and do your duty, including to be marked or ridden, if necessary, to be sold or sturdy or perhaps skinned or stuffed, if necessary, to see oneself as others do, to be humbled, in other words, as a reflection of a world that would claim to name you, to ask you to please remove that mark, to prove yourself, to make something of yourself, a mental representation, begging the question of if you have an eye, to see with it, or one to know yourself with, your eyes, this external whole that sums up and idealizes what you might see of yourself, but always first a set of characteristics defined by relations and tests of tests of how one perceives…oneself…through other eyes.
Mr Wise: In 2005, Happy became the first elephant to pass the mirror self-recognition-test, considered to be a true indicator of an animal’s self-awareness and ‘thought to correlate with higher form of empathy and altruistic behavior.’
Staring at our reflections has also been linked to starvation and death (Narcissus).
MR WISE: One who understands the concept of dying and death must possess a sense of self. Both chimpanzees and elephants demonstrate an awareness of death by reacting to dead family or group members. Having a mental representation of the self, which is a pre-requisite for mirror-self recognition, likely confers an ability to comprehend death.
MR MANNING/DEFENSE: One thing we do agree on is that Happy is an elephant…and we contend that Happy is Happy where she is…Public policy is a legislative initiative, and not a matter for a Court… The Fourth Department, less than five years ago, decided another case involving a chimpanzee. Counsel referenced it as the Kiko case. I don’t think the Appellate Division misunderstood that case at all. I think they looked through the two-step transaction to find that all this is really about is changing the conditions in captivity of the elephant…What they are seeking to do is take Happy from an environment where she has been for forty years–
THE COURT: Forty-seven
1. MANNING: She has been at the Bronx Zoo for forty out of forty-seven years, Your Honor. She is comfortable there. They are trying to move Happy to some place they would rather see her…It’s obvious that what we talked about today is the position of NHRP insofar that they seek to make persons out of animals in a variety of species, and it really has very little to do with Happy’s own circumstances.
We saw our reflection imperfectly in polished obsidian, in copper, or stilled water; it got better in a metallic surface backed on glass, but sand impurities blurred us, until great sums finally gained a truer view. Now mirrors are cheap, and that non-consensual X says, ‘hello crass world, you outer distortion of inner value!’ The reflection asks, but does not answer, how to act when waking with this X, vestige of the master/slave dialectic on which the “mirror stage” was based: my awareness of your awareness, as seen by Hegel as the death-struggle — one of us must prevail, and in prevailing, destroy the very awareness on which we depend. In Hegel’s ritual, death is only perceived as real by the one who will become enslaved. The Master is a master because he doesn’t understand his dependence on life, and therefore doesn’t fear (or take into account) the reality of death– just as the Ego will go to any length to protect its premises.
(On video: two elephants walking around a small enclosure)…
Diana Reiss: “[the Mirror Recognition Test] lets us use mirrors as a tool to see how animals process and interpret information, and it’s a rare ability in the non-human animal world…When we first exposed a group of elephants, they explored the mirror, they actually got up over and looked over the mirror, they sniffed over the top of the wall with their trunks. One of the elephants actually tried to look under the mirror. This is similar to what we see with dolphins and great apes as well. And then once they passed this exploratory phase, they sort of check it out, similar to the Lucille Ball/ Harpo Marx skit where you sort of do a lot of repetitive movements, checking out what happens when you move a certain way…”
MR WISE: …It doesn’t matter whether Happy — they think Happy is happy…Happy has been in prison in the Bronx Zoo for forty years. Everything about her evolution — everything about who she is as an elephant is being impinged by that every single day. She has no idea what it would be like to move to a place that’s 2300 acres where she would be able to be part of a herd and live with other elephants and make choices….And this is not a matter for the legislature. Habeus Corpus in New York is a matter of common law.
(On video: dolphins in a pool moving. A chimpanzee in a tiny wire cage, poking at a screen.)
Diana Reiss: “But we had to go a step further…the litmus test to mark an animal — we use a non-toxic child’s paint — and we put a mark on one side of the elephant’s head, and then an invisible mark of the same substance on the other side…and the idea was would they look in the mirror, see the visible mark, and touch it with their trunk, and that’s exactly what this one elephant did.”
(On video: Happy with white X on her face, swinging her trunk)
Maybe we succumb to the mirror as our identity takes on its spectacle — a commitment of saving face. And this we call our intelligence. Our self-awareness. That which gives us the right to call ourselves persons, persons with rights; image over experience. Animals, some legal experts say, can’t have a person’s rights — for no animal can perform the duties on the backside of the mirror: a foraging elephant tramples a farmer’s property, but that elephant can’t coherently stand trial, can’t know right and wrong, so they say.
Mirror-mirror on the wall…who is the fairest of them all?
Yet doesn’t the very will to autonomous life grant a right not to be deprived of it? Or suffering at the hand of another confer a right to be relieved of it? Don’t inflicted damages give standing, and once standing, doesn’t a form of law evolve along with every animal who stands in the shadow of those laws? The experts tally those who pass through the Mirror: a bottle-nose dolphin, adult orangutan, adult bonobo, Eurasian magpie, pigeon, an ant, and even a cleaner wrasse fish…
Mr Wise: The Fourth Department correctly understands that the ability of an entity to bear duties and responsibilities is irrelevant to the determination of personhood under any and all circumstances. (Mem. at Part IV). Graves, 163 A.D. 3d 16; Tommy, 31 N.Y.3d at 1057 (Fahey, J., concurring). An entity is a “person” if she can either bear rights or duties. Id. Judge Fahey made clear that it is irrelevant “that nonhuman animals cannot bear duties,” as the “same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child.”
How many others were marked and failed to touch the X, or joked around in the mirror because it all just seemed absurd?
Somerset, 1772: Habeus Corpus success on behalf of a slave. Lord Mansfield said slavery was “so odious that the common-law wouldn’t support it.” He said, “If you don’t’ like what I did, then go to Parliament.” They went to Parliament and they couldn’t overturn it.
The U.S. Constitution mentions the term ‘persons’ fifty-seven times, but does not define it.
Hundreds of historic cases of enslaved children given Habeus relief show the two-step transaction — how the first step is freedom, the second is what to do with the children, who are not “competent” to live on their own. Likewise, Happy can’t go back to the wild. She is incompetent, in legal terms. After Habeus relief, a world-less refugee, she will need sanctuary.
Mr Wise: The First Department is especially troubling by the fact they simply say ‘Only humans can be persons.’ We say we have so been there before, because at one time, only white people could be a person. Only men could be a person. Chinese people couldn’t be persons. Native Americans couldn’t be persons. We have been there before. We don’t need to go there again.
THE COURT: I can say this is probably the most unusual case that I’ve sat on in my ten years on the Supreme Court, and the twenty years prior to that working for the Court. I’ve always enjoyed elephants…
The Single Characteristic in the Room
At night the zoo appears as a thin milky silicone holding the ghosts on a field, the stench of concrete, and dirt too hard for footprints. Feel the sensation of weakening heat, despite the infrared sensors and drones reading like text fading between lines. It’s not just that fireflies have gone into childhood, that place of vivid shadows, nearly extinct, or that insects have gone into ignorance, that place burning through the retina, or that technologies that allow us to count distant stars also help us locate a few wild heat-bodies on the verge of their poaching…In our dying empire of predatory face data, a monkey who takes his own picture cannot own the right to his image because we look to law to diagnose selfhood, confirm our brand, crown us CEO of all species — and monkeys and elephants who may clearly express something, only do so as human by-products, as kitsch.
In a legal slight of hand, anti-cruelty laws defend the interests of “justice,” not animals with rights, because animals are still personal or corporate property. Who is justice? How does justice have interests? Justice seems to be party to a social contract…and social contracts are what constitute citizens, not persons. Many legal attempts to protect animals rely on extending property interests, typical torts such as malicious destruction of property. Cruelty done to a thing becomes a sort of “property-plus” — and arguing on behalf of the animal’s interest is generally denied, as the animals don’t have a claim to justice on their own.
Mr Wise: Excluding someone from justice, or from any social contract, doesn’t mean they aren’t still persons…as the term “person” designates the law’s most fundamental category by determining who counts, who lives, who dies, who is enslaved, and who is free. See Byrn v. New York City Health and Hospitals Corp., (1972)
In a Florida Supreme Court case, ‘animal’ is defined as “every living dumb creature” — reflecting how we use so-called speechlessness to question their right to a day in court. How many ways are there to hear a plea for help?
Fairest of them All
During the Buddha’s many lives, he wasn’t safe from the murderous aims of his enemies — one of whom schemed, “Verily, no mortal beholding the beauty of Gotama’s person dare approach him, but the king’s elephant, Najagiri, is a fierce and savage animal, and knows nothing of the virtues of the Buddha, the Law, and the Assembly.”
Approaching the king’s elephant-keepers, he demanded, “If you are eager for honor, early tomorrow give Najagiri sixteen pots of fiery liquor, and at the time when the ascetic Gotama comes that way, wound the elephant with spiked goads, and when in his fury he has broken down his stall, drive him in the direction of the street…”
Recall the dream the Buddha’s mother had at his conception: a white elephant entering her right side…and how later the enlightened Buddha is said to be a white elephant — the tamed and compassionate version of beastly samsaric elephants like Najagiri.
As Najagiri charged down the street, trunk and massive legs drunken in rage — a woman dropped her child, afraid. The story tells how the Buddha stepped into Najagiri’s path, and revealed how he’d been made drunk only to attack. Upon hearing this, Najagiri lifted the child to the side, and all the drink in his body left him. Buddha: “Najagiri you are a brute elephant and I am the Buddha elephant. Henceforth be not fierce and savage, nor a slayer of men, but cultivate thoughts of charity.” And he taught him the Law.
Blind Expert Feels the Tail
“Any case that could lead to billions of animals having the potential to file lawsuits is a shocker in the biggest way.” (Richard Cupp, Pepperdine Law School). “Once you say a horse or dog or cat can personally sue over being abused, it’s not too big a jump to say, ‘Well, we’re kind of establishing that they’re legal persons with that. And legal persons can’t be eaten.’”
Animal birth, the Buddha taught, is the worst birth of all — most unfortunate and without hope. Lacking any means to understand circumstances, animals die in terror and pain, with no intelligence through which to make spiritual progress. A blind turtle never actually sticks its head through that floating ring. “The bondage of the animal realm” means dwelling in disease-ridden muck, eating shit, being born and dying in water, being born and dying in darkness, rot, eating infested and decomposing flesh, and suffering the most repulsive and tortured lives imaginable. Not only that, animals live by “the law of the fish” where justice only means bigger eats smaller, on and on without end. Worst of all, the Buddha taught, no one in the animal realm can reach enlightenment — can ever attain the “fruit of stream-entry.”
Buddha is reborn as an elephant seven times in the hagiographies, the original tamed elephant, for nothing is as dangerous as taming a wild mind. But in reality, it was the malicious and violent beatings by the mahout that rendered an elephant submissive; just as the bullwhips, electric prods, and solitary confinement used by modern zoo-keepers are not legally considered cruelty.
By taming Najagiri, it was said the Buddha caused the crowd to attain enlightenment: just an old-fashioned miracle, a perfect advertisement. Waste your precious human life, the Buddha taught, and the billions of ways you can blow it are the billions of unfortunate hell-bound animals.
If you’re Happy and you know it
State v. Fessenden (2014): “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still[.]”
When Buddha was enlightened just ten short years, he went alone to the forest of Parileyyeka to recover from feuding among his monks. In this forest, an elephant who had lost his herd served the Buddha “as a mirror” — knowing and fulfilling his every need and wish. The elephant would move enormous rocks into the sun and then into the pool to heat the bath water. The elephant would fan the man, and feed him, and keep the sleeping area clear. At night the elephant would stalk the forest with a large club to protect him. Together the elephant and the Elephant-Among-Men spent the rainy season, until they both felt refreshed.
Brussels, France, New Zealand, Quebec, Switzerland, Slovakia, Austria, and Egypt have all redefined animals as sentient beings and not things or property. As the Slovak Spectator reports: “animals will enjoy special status and value as living creatures that are able to perceive the world with their own senses. Provisions on movable things apply to animals, but not if it contradicts the nature of an animal as a living creature.”
In their eyes we see ourselves looking through — bones and tissues and skin and hair and organs and emotions — the same re-arranged collage of earth-bound lives. Their hell is also ours, and it’s pretty clear no enlightenment can leave another’s behind.
A writ was issued on behalf of an orangutan named Sandra in Buenos Aires, Argentina in 2015. One year later, another Argentine court recognized a chimpanzee named Cecilia as a “non-human person,” ordered her released from a Mendoza Zoo pursuant to a writ of habeas corpus, and sent her to a sanctuary.
In United States ex rel. Standing Bear v. Crook, (C.C. Neb. 1879), the court rejected the United States Attorney’s argument that no Native American could ever be a “person” able to obtain a writ of habeas corpus, and issued a writ on behalf of the Ponca Chief, Standing Bear.
The Indian Supreme Court held that nonhuman animals have both a statutory and a constitutional right to personhood and certain legal rights. Animal Welfare Board v. Nagaraja, (2014)
On March 20, 2017, New Zealand declared the Whanganui River a legal person after its headwaters were diverted, its bed was mined and straightened, its rocky falls flattened, its fish populations killed, and the water polluted. Now a forest as well as a mountain will become legal people, too.
In 2018, the Colombian Supreme Court designated its part of the Amazon rainforest as “as an entity subject of rights,” in other words, a “person.”
MR WISE: “This case will turn on whether an extraordinarily cognitively complex and autonomous nonhuman being such as Happy should be recognized as a legal person with the right to bodily liberty protected by the common law of habeas corpus pursuant to a New York common law that keeps abreast of evolving standards of justice, morality, experience, and scientific discovery and an evolving New York public policy which already recognizes certain nonhuman animals as “persons.” (Mem. at Part I). As recently recognized by Court of Appeals Associate Justice Eugene Fahey in Tommy, this question is “a deep dilemma of ethics and policy that demands our attention.” Further, “[t]he evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings . . . . To solve this dilemma, we have to recognize its complexity and confront it.”
From the Mahavibhasa, “At the beginning of an eon, during an eon of evolution, all beings use the Saintly language (i.e. Sanskrit). But later, when they eat and drink, the division between beings becomes unequal; insincerity and hypocrisy grow; also, there are all sorts of languages, and a point is reached where there are some beings who are no longer capable of speaking.”
A few days ago, an elephant in a South African game park killed a poacher hunting for black rhinos. The elephant took the poacher’s body to a place where it could be eaten by lions.
After his refreshing sojourn in the forest, when the Buddha was ready to return to the town, he told the loyal elephant that despite their bond, he had to stay behind: “Pārileyyaka, I am not turning back! In your present state of existence, you cannot attain the transic states, nor insight, nor the fruits of the path. You must stay here!”
At hearing these words, Pārileyyaka tucked his trunk and retreated, weeping, hoping that something would change the Enlightened One’s mind.
The elephant in the room can do nothing but wait.
At the Buddha’s final refusal, Pārileyyaka died of a broken heart.