By Spencer Lo
A group of 18 legal academics, solicitors, and barristers in the UK, led by Dr. Joe Wills, submitted an amicus curiae brief that powerfully reinforces our arguments on behalf of Mari and Vaigai. Their brief exposes fundamental errors of the Intermediate Court of Appeals (ICA), which held that Mari and Vaigai—because they are not human—are not “persons” entitled to the protections of habeas corpus. This post explains how the UK Legal Experts address those errors by clarifying two central concepts in our appeal: habeas corpus and legal personhood.
In deciding whether to affirm or reverse the ICA decision, the Hawai‛i Supreme Court will need to grapple with competing understandings of those concepts.
Also known as the Great Writ, habeas corpus is an ancient common-law remedy long revered for safeguarding liberty. It has been flexibly used to challenge unjust confinement in myriad situations, including the confinement of individuals with few or no recognized legal rights. One of the core issues on appeal: What is the nature of habeas corpus in Hawai‛i—is it still a common-law remedy, or has its common-law character been abolished by statute? How the Court understands habeas corpus will influence its thinking on Mari and Vaigai’s personhood status.
The statute in question is HRS Chapter 660, which uses the term “person” to refer to individuals protected by the writ. If, as the NhRP contends, habeas corpus remains a common-law remedy that coexists alongside Chapter 660, then the Great Writ’s scope is subject to judicial development. The Court would have the independent judicial authority to extend Mari and Vaigai the writ’s protections under the common law—to recognize them as “persons.” On the other hand, if, as the ICA held, habeas corpus as a common-law remedy has been abolished by Chapter 660, then its scope is not subject to judicial development. This would likely doom Mari and Vaigai’s chances for freedom, since only the legislature could extend the writ’s protections to nonhuman animals, and it hasn’t done so.
Supporting our position, the UK Legal Experts provide a crucial historical perspective on the nature of habeas corpus, which demonstrates the ICA’s most fundamental error: conflating statutory regulation with statutory displacement. In England, where the Great Writ originated, habeas corpus existed as a common-law remedy before and, at various times, alongside procedural statutes regulating it. The relationship between common law and statute was complementary, not preemptive. Occasionally, legislation limited the preexisting common-law writ, but this was done expressly. The experts explain:
HRS ch. 660 contains no express provision abolishing the common-law writ or prohibiting Hawaiʻi’s courts from considering whether habeas corpus may extend to a nonhuman animal. . . . Under the legal tradition from which Hawaiʻi inherited habeas corpus, a legislature may restrict the common-law writ, but it must do so expressly. Courts should not infer the surrender of an ancient and adaptable judicial power merely from the enactment of a procedural habeas statute, still less from a contested interpretation of a single statutory term.
As their brief shows, the notion that the common-law writ no longer exists as such is a radical departure from history, one that cannot be justified under Hawai‛i law. And this error of the ICA led to the next: misunderstanding the nature of legal personhood.
Interpreting the word “person” in Chapter 660, the ICA held that its “plain meaning” does not include nonhuman animals. However, as the UK Legal Experts explain, this reasoning overlooks the settled distinction between the meaning of “person” in everyday speech and its meaning in the law. While “person” in everyday speech generally denotes a human being, “person” in the law is not a biological category. Rather, it is a legal term of art that identifies “an entity recognized as capable of holding rights or bearing duties.” Nothing about this concept confines it categorically to human beings. Indeed, there are numerous nonhuman “persons” under the law—recognized as such because they can hold legal rights, bear legal duties, or both: examples include corporations, sovereign states, ships, Hindu idols, and other juridical entities. Nonhuman animals recognized as rightsholders thus qualify as legal persons.
Moreover, legal personhood is not all-or-nothing, but a relational, context-dependent status. It does not “operate as a single status carrying an identical set of rights and capacities in every context,” meaning an entity can qualify as a person for one purpose (because it holds a particular right) but not qualify as a person for other purposes (because it lacks other rights). In other words, context matters for attributing personhood.
Are Mari and Vaigai “persons?” It depends on the relevant legal right and context. In this case, the relevant right is the fundamental right to bodily liberty, and the context is habeas corpus, which exists to protect that right. If Mari and Vaigai are recognized as having this fundamental right, they are necessarily “persons” for purposes of habeas corpus. Whether they have the right to bodily liberty is therefore the crucial question. What the UK Legal Experts have shown is that, contrary to the ICA, it cannot be resolved simply by consulting the meaning of “person”: “Whether elephants are usually called persons in everyday speech has little bearing on whether the common law may recognize Mari and Vaigai as the holders of a particular right.”
So how should the Court decide the question of Mari and Vaigai’s right to bodily liberty? The answer connects to where this post started: the nature of habeas corpus in Hawai‛i. The Court must bear in mind its independent judicial authority to expand the writ’s protections under the common law, and the historic function of habeas corpus “as a flexible safeguard of liberty and a mechanism for testing the justice of confinement.” This means considering the detailed evidence submitted in this case, which demonstrates that Mari and Vaigai are suffering from an unjust confinement. Elephants possess sophisticated cognitive, emotional, and social capacities, and Mari and Vaigai’s confinement at the Honolulu Zoo is fundamentally at odds with those capacities.
Proper consideration of the evidence requires, at minimum, reversing the ICA decision and allowing Mari and Vaigai the chance to seek their freedom.
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The NhRP’s hearing before the Hawai’i Supreme Court is scheduled for November 9, 2026 at 10:00 AM HST. It is open to the public and will be livestreamed on YouTube.
Please join us for this historic legal event: RSVP to attend the hearing (in person or online) for reminders and day-of attendance information.