Not a Right Doesn’t Mean Wrong

              Recently, the organization nonhumanrights.org scored a legal win. Yes, nonhumanrights.org! What is this about, you may wonder? Do they work against human rights? Is it a campaign that UFO’s should be entitled to land on Earth if they desire?

              None of the above. Nonhumanrights.org is devoted to protecting the welfare of animals. Their mission is to use litigation, legislation, and advocacy to challenge the legal status quo that animals have no inherent rights.

Happy is not Happy

              For the last few years they have been fighting a protracted legal battle on behalf of the ironically named Happy, an elephant at the Bronx Zoo (Happy was named, along with 6 other elephants, for each of Snow White’s seven dwarfs). Happy has been at the Bronx Zoo for over 40 years, and for the last few years has been kept most of the time in a small cage, let out when conditions allow into a one-acre outdoor exhibit that is far too small for her to roam. Happy is kept alone, without the company of other elephants. Experts maintain that elephants need a large amount of territory to walk around, and naturally live in groups. They say keeping Happy alone in a cage is cruel.

              Happy is well fed and cared for by zoo employees, so the Bronx Zoo is therefore not violating any existing law governing the treatment of animals. So the Organization for Non-human rights filed a writ of habeus corpus on behalf of Happy herself, claiming that Happy is wrongfully imprisoned and being kept in solitary confinement. They claim Happy has a right to liberty, which the zoo is violating. The petitioners want the court to force the zoo to transfer Happy to an elephant sanctuary, where she will be able to spend her remaining days roaming and foraging in the company of other elephants. On May 4th, the New York Court of Appeals agreed to hear this case, a major legal victory for the petitioners.

Criticism: What About

              Criticism of this lawsuit (and in fact of the whole organization that filed it) comes fast and furious. The first type of criticism is of the ‘what about’ variety. What about people being wrongly held in solitary confinement in jails and prisons? Why are you worried about Happy the elephant when you should be worried about them? What about people around the United States being denied their liberty and held in jail without trial only because they can’t afford bail? How can anyone sue on behalf of an elephant without first dealing with all that?

              People involved in human rights work, however, are experienced at setting ‘what about’ style objections aside. No one can justify doing wrong by pointing out that there is someone else who does even more wrong. It’s sort of like getting pulled over for driving 20 miles per hour over the speed limit and telling the cop he shouldn’t give you a ticket because what about the guy you saw driving 30 over the limit yesterday on this same road. Whether that other person got a ticket or not isn’t the point- the point is that your driving was too fast right now.

              So too with human rights. For example, we’ve seen this in the news recently as states create rules making it more difficult for citizens to vote. When companies protested Georgia’s recent new slate of rules, politicians who had sponsored the measures cried hypocrisy. How can you boycott or condemn us, they asked, when you do business in countries where citizens are not allowed to vote at all? But this is not the point. The fact that some countries are led by dictators and even with these new voting restrictions Georgia’s citizens will still have far more political liberty than people living in dictatorships is not relevant. Even if what’s going on in those countries may be worse, that has nothing to do with whether a new rule in Georgia is right or wrong.

              Perhaps it is worse for jails to hold human prisoners in solitary confinement for years on end than for the Bronx Zoo to keep Happy in a small cage. And we certainly should protest the massive overreliance on solitary confinement in U.S. prisons. But if keeping an elephant isolated in undersized quarters is wrong we should certainly protest.

Not For the Courts

              A more important objection to the petition on behalf of Happy is that it requires the courts to decide on an endless series of values questions that have not been put into law. The case of Happy is obviously just the tip of the iceberg. If Happy is entitled to freely roam, what about the millions of egg laying chickens we raise in tiny cages too small for them to move, packed together so tightly their beaks must be clipped so they don’t injure each other? What about broiler chickens, genetically selected to grow so quickly they can barely stand on their own legs? And do they consent to being decapitated and turned into McNuggets 38 days after they hatch?

              Taken to the extreme, one could point out that even zoos with large exhibits that convincingly mimic animals’ natural habitats are still denying animals their liberty. A family might view their well cared for dog as a treasured pet, but someone can still protest that providing nice quarters and good living conditions doesn’t justify imprisonment.

              The manner in which we raise animals on industrial scale farms, in particular, is certainly worthy of debate. It’s hard to look at farms containing hundreds of thousands of crammed chickens and not think that it’s inhumane. Livestock raised in confined animal feeding operations, known as CAFOs, also raise a host of issues. In addition to the animal treatment concerns, there are environmental problems as these places produce vast quantities of animal waste and other pollutants. Wouldn’t we just be better consuming less animal products and letting livestock grow free range?

               But who decides? These are questions about which people can legitimately disagree. If someone says they think elephants are sufficiently social and intelligent to have the right to live in groups but it’s okay to keep cows in individual cages, others can disagree about either the elephant or the cow. There is no absolute proof one way or the other. One person may decide not to consume meat from animals raised in confined conditions, but free range is okay. Then another may feel that even what passes for free range isn’t free enough. They can both be entitled to their views.

              In other words, this discussion about animal rights and welfare is important and those who are concerned have every right to bring it up. But the discussion has to take place in the public sphere, where all viewpoints can be heard, and decisions have to be made democratically, via the political process. It would be appropriate to campaign, for example, that zoo certification organizations only endorse zoos that keep elephants in herds of a certain size with exhibits of certain minimum dimensions. But we don’t have here is a clear yardstick of what’s right and wrong, so a court is the wrong place to turn for a decision.

Not a Matter of Rights

              This is a key difference with human rights. The entire premise of the human rights movement is that some things are absolutely wrong and unjustifiable. No matter your culture or religion, torture and slavery, for example, are never allowed. No matter how important or desperate a military cause, targeting civilians is a war crime. There is no room for individual dissenting views. Because we believe these to be legal principles, judges can and should rule on whether they have been violated.

              Human rights are of necessity few, limited to what we all agree on. Therefore what we call human rights is just a small subset of what is moral and good.

              My opinion is that zoos shouldn’t keep social animals in isolation. I also think it’s abhorrent the way we raise animals for eggs, milk, and slaughter. But I acknowledge that others may have differing standards, so this is not a matter of absolute rights.

              For nonhumanrights.org to claim that their views on the treatment of animals are a form of animal rights, similar to human rights, is mistaken. To bring about the changes they desire, they need to convince people to adopt their views on animal welfare, and eventually prevail upon legislatures to make those opinions law. Their extraordinary claim that their views regarding animal welfare are absolute and inviolate and so judges should therefore them as law even absent legislation doesn’t cut it. We reserve that claim only for the most fundamental of principles that the whole world has signed on to in the Universal Declaration of Human Rights.

              I certainly want Happy to be happy. But since Happy can’t tell us exactly how she’s feeling, people are prone to disagree about exactly what she needs. This is an important discussion that we should have, and animal advocates should insist that we talk about it. And I hope they convince many more people that the way we currently treat animals is horrendous. Because education and persuasion are the way to bring about this sort of change. Lawsuits may be a tempting shortcut to those who care deeply about this, but courts aren’t where this debate belongs.

Elephant photo by Wolfgang Hasselmann on Unsplash

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