Amicus Brief (in the Case of Happy the Elephant)

Abstract

II. SUMMARY OF THE ARGUMENT This brief does not address the issue of Happy's personhood. The key question for the Court is not whether Happy can be called a "person." Instead, the key questions are, first, whether there are beings who have rights even though they cannot have duties or responsibilities (whether we call such a being a "person" or not). Second, whether Happy is such a being. Third, whether liberty rights are or can be among the rights of such beings, and are among Happy's rights. Fourth, whether transfer to a sanctuary is a remedy for the violation of Happy's liberty rights, if there is such a violation. As far as the first question—whether we should call Happy a person or not—is concerned: The law has traditionally classified things into persons and property. But let us suppose there are three legal categories of things, (1) Beings with rights and duties, (2) Beings with rights but no duties, and (3) Beings ("things") which have no rights and can therefore be property and can be used however we please. [End Page 29] Should we choose to reserve the word "person" for the first of those categories—for beings who have both rights and duties—that usage surely is not a reason for violating the rights or the liberty rights of beings in the second category. Should we choose to use the word "person" for beings in both of the first two categories, that is, for all beings who have rights of any kind, that does not settle the question whether any given "person" has any specific right to liberty or not, and so whether that "person" falls under the protection of habeas corpus. To claim that it is possible to separate rights from duties is not to deny that some rights may be connected to the ability to have duties, so we must still establish that a given right to liberty is not one of those. This brief approaches these questions in this way. First, it argues that if human beings have a legitimate claim to have rights, then Happy does so as well, on the basis of some reflections about why we suppose we have rights at all. Second, it argues that on the account of rights it offers—and on most accounts of rights in the philosophical tradition—it makes sense to recognize a category of beings who have rights but no duties. Because one of the arguments against such a recognition calls into question whether a being without duties can have liberty rights in particular, this brief will argue that it also can make sense to think of such beings as having liberty rights, and it makes sense to think of Happy as having such a liberty right which has been violated. And fourth, this brief argues that release to a sanctuary is an appropriate response to the violation of Happy's liberty right.