| From: | Matthew P. Harrington <matthew.p.harrington@umontreal.ca> |
| To: | Steve Hedley <hedley26@gmail.com> |
| obligations@uwo.ca | |
| Date: | 15/06/2022 14:30:01 UTC |
| Subject: | RE: Happy the Elephant |
The remedy question is one factor that ultimately dooms the case.
Petitioners agreed that Happy is not entitled to be released to wander the Bronx. It argued that Happy could be confined but in a more “appropriate sanctuary.” Under New York`s view of habeas, that assertion made the writ unavailable.
Habeas “will lie only where the [relator] would become entitled to . . . immediate release upon the writ being sustained”. Here, there was no question of release. The debate was over where to confine the animal. Habeas cannot be used to contest the quality
of confinement. It can only be used where it is argued that confinement of any kind is unlawful.
So, saying that Happy needs to be held elsewhere is the assertion that precludes the writ.
From: Steve Hedley <hedley26@gmail.com>
Sent: Wednesday, June 15, 2022 3:44 AM
To: obligations@uwo.ca
Subject: Happy the Elephant
Interesting.
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.
Steve Hedley
From: Jason W Neyers <jneyers@uwo.ca>
Sent: Wednesday 15 June 2022 01:58
To: k.barnett <k.barnett@unimelb.edu.au>; matthew.p.harrington <matthew.p.harrington@umontreal.ca>
Cc: obligations <obligations@uwo.ca>
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.
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)