|From:||Lionel Smith, Prof. <email@example.com>|
|Date:||15/06/2022 21:56:28 UTC|
|Subject:||Re: Happy the Elephant|
On the other hand we all know that courts are no longer constrained by the form that particular writs used to have or the recourses that they used to entail, since we no longer literally issue writs. What we are constrained by is what we now think were the justice claims that they aimed to assert and vindicate.
The writ of HC was directed to the custodian and required them to bring the detained person into court (HC= ‘have the body’) for the resolution of whether the detention was lawful. I think it has not been uncommon for a person whose detention was found unlawful to be re-arrested on some other basis.
In line with Gerard’s comment, see R v Gygnall  2 QB 232 (CA) in which a mother brought HC to obtain custody (not untrammelled freedom) of her minor child from another.
The real issue, in respect of which modern legal systems are arguably in evolution, is that in the systems most of us know, non-human animals are considered objects of rights not subjects of rights and every thing in the universe has to be one or the other.
The limits of the remedy are clear. You have to assert that the detainee has the right to go free, not that he should be elsewhere.
So, to succeed, the claim has to be that the zoo must open the gates and let Happy wander where he will.
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From: firstname.lastname@example.org <email@example.com>
Sent: Wednesday, June 15, 2022 5:16:28 PM
To: Matthew P. Harrington <firstname.lastname@example.org>
Cc: Alan Hanna <email@example.com>; Jack Enman-Beech <firstname.lastname@example.org>; Steve Hedley <email@example.com>; Obligations <firstname.lastname@example.org>
Subject: Re: Happy the Elephant
Would things have been different had it been proposed that Happy wander the Down Under Manhattan Bridge Overpass or DUMBO neighbourhood?
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On 16 Jun 2022, at 6:54 am, Matthew P. Harrington <email@example.com> wrote:
But, of course, that is the remedy that dooms the claim even if Happy were a person. In New York, habeas is only available where a person is entitled to be released from confinement. It is not available to challenge the location or the terms of the confinement. The habeas claim is that the detained person must be set at liberty. In other words, if you are arguing that you should be in a different jail or that the jail you are in should treat you better, then you are not making a habeas claim. Once the plaintiff admits that Happy is not entitled to be freed, then habeas becomes unavailable. So, if we’re not setting Happy loose in the Bronx, there is no writ.
To the point on Happy’s release: “what would the plaintiff have asked for if the case was won? Presumably not that Happy be released to wander in the Bronx.” The remedy would have been a transfer to sanctuary.
In case any members are interested in (the reams of) legal submissions and history, here is the page for all the submissions and timeline: https://www.nonhumanrights.org/client-happy/.
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To Professor Hedley's thorough reply I'd only add that the OED attests the broader use of "animal" in English a couple centuries before the narrower, though both meanings were known to Classical Latin. We remember Hamlet's fretting over humans being both animal and divine, though it was perhaps only scansion that caused Milton to qualify the concept in "Man hath his daily work of body or mind / Appointed, which declares his Dignitie ... While other Animals unactive range, / And of thir doings God takes no account." "Non-human animal" seals the ambiguity while reminding us that humans and other animals are in some ways not so different.
Yours truly &c.,
SJD Candidate, University of Toronto Faculty of Law
On Wed, Jun 15, 2022 at 3:44 AM Steve Hedley <firstname.lastname@example.org> wrote:
As to whether humans are animals, most dictionary definitions of “animal” clearly include humans. Jason is right that “animal” is sometimes used in a narrower sense – usually a pejorative one – but in its more neutral usage the word is clearly broader. Don’t know which edition of Merriam-Webster is being used, but the online version makes the range of usage clear. What distinguishes humans from other animals is of course a much-debated question in the history of philosophy; and in more modern times there is equally intense debate amongst biologists as to which of the (relatively slight) unusual features of humans made the real difference in evolutionary terms (opposable thumbs? relatively large brains? concealed ovulation? menopause? distance running ability? etc)
What puzzles me about the case is the remedy – what would the plaintiff have asked for if the case was won? Presumably not that Happy be released to wander in the Bronx.
As to Matthew’s point about representation, I’m not sure there is a difficulty – no doubt there is room for argument about who is best placed to argue for Happy’s interests, but it would have been poor trial tactics for the zoo to raise the point, as that would probably be seen as conceding that someone should have that role.
From: Jason W Neyers <email@example.com>
Sent: Wednesday 15 June 2022 01:58
To: k.barnett <firstname.lastname@example.org>; matthew.p.harrington <email@example.com>
Cc: obligations <firstname.lastname@example.org>
Subject: RE: [EXT] Happy the Elephant
[EXTERNAL] This email was sent from outside of UCC.
I find the terminology “non-human animal” interesting since the term human and animal are often (perhaps traditionally?) used as opposites, see Merriam Webster: “Any living creature other than a human being can be referred to as an animal”. I wonder what the origin of the terminology “non-human animal” is?
I must say that I find the NYCA’s reasoning unpersuasive. The same arguments of drastic effects on the economy/society could have been made (and probably were) to deny rights to those human beings held as slaves in other times. There must be an “essence“ which the class of humanity has which makes it capable of bearing rights and being subject to duties and the proper question would seem to be whether other species share in this essence.
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