Elephants aren’t ‘persons’, but bees are fish; legal fictions run amok

Rights are often granted or taken away by courts based on the definition of a single word. A California court in May decided that the definition of fish can include bees, granting the latter endangered species protection

Rights are often granted or taken away by courts based on the definition of a single word. A California court in May decided that the definition of fish can include bees, granting the latter endangered species protection. At the other end of the spectrum, the New York Court of Appeals stated the obvious when they issued an opinion telling us that elephants aren’t people and don’t have liberty rights. Is there any logic to what judges do?

Any farmer who has grappled with the Produce Safety Rule’s definition of ‘farm’ knows all too well that legal definitions often don’t capture the meaning of words as they are used in everyday life. Legal definitions are also often divorced from scientific understanding; though tomatoes are botanically fruits, an 1893 U.S. Supreme Court decision declared them to legally be vegetables.

It is tempting to conclude that this disconnect between legal definitions and our observed reality is evidence that lawyers are tricksters, and that faith in the judicial system is misplaced. The apparent absurdity can, however, belie an underlying logic.

The elephant’s advocates petitioned the court to release the elephant, named Happy, from confinement at the Bronx Zoo under the doctrine of habeas corpus. This constitutional right is typically used by prisoners wanting to be released from captivity. Unsurprisingly, this right has only historically been used for people.

Therefore, Happy’s supporters needed to convince the Court that she was a “legal person with a …right to bodily liberty.” Expanding what fits into the category of ‘legal person’ isn’t a novel idea. We’ve had to correct grievous historical injustices by bringing women, children, Africans, and Indigenous people into the fold of full legal personhood. We have even granted things personhood rights—corporations are, legally, ‘persons.’

In the case of corporations or elephants, granting legal personhood does not mean we are equating them scientifically or socially with human beings. The legal fiction of ‘personhood’ grants those that can claim that mantle certain rights. Corporations have the right to own property and the right to free speech. Elephants aren’t requesting either of those rights (as far as we know). But should elephants be granted a right to be free from harmful captivity?

There is no statutory definition of human; Happy’s lawyers had to rely on external facts, like the fact that Happy was the first elephant to demonstrate self-recognition in a mirror. As noted in the opinion, they also outlined the “essentially undisputed” truths that “elephants are intelligent beings, who have the capacity for self-awareness, long-term memory, intentional communications, learning, and problem-solving skills, empathy, and significant emotional response.” The lawyers were arguing that Happy was humanlike enough to have a claim to legal personhood.

The lawyers for the bees had an easier task ahead of them because they did not have to argue that bees are fishlike in any way. They just had to argue over the existing definition of protected animals in California’s endangered species statute. Unfortunately, the bee-inclusive protected class of “invertebrates” had been tucked into the definition of fish, creating an ambiguous and confusing situation.

Any place of ambiguity in a statute becomes a legal battleground. Here, the battle was between the colloquial understanding of the term fish, versus the statutory definition of “fish” for the limited purposes of the state endangered species act.

The statute defines fish “as a wild fish, mollusk, crustacean, invertebrate, amphibian.” So ‘fish’ here includes several non-fish species. The Trinity bristle snail has been protected under this statute for decades and is a land-living mollusk, not aquatic.

The bees gained protection because they are obviously invertebrates and nothing in the text, legislative history, or previous use of the statute had limited protections to aquatic invertebrates. One would prefer that the statute be amended to be clearer, but judges cannot do that, they can only interpret what is in front of them.

The agricultural industry is and should be very interested in these twin semantic-based decisions. In fact, it was the Almond Alliance of California that sued the California Fish and Game Commission for including bees on the endangered species list. Pesticides can harm bees, and the almond industry is reliant on pesticide use. With endangered species protection, the Fish and Game Commission will have stronger firepower against pesticide use. Ironically, the almond industry is also reliant on the bees they are fighting to keep unprotected.

And what if Happy had been determined to be a legal person for the purposes of habeas corpus? It “would have significant implications for the interactions of humans and animals in all facets of life,” including agriculture, warned the Court. Would farmers need to defend their use and ownership of animals? How far would personhood extend in the animal kingdom? Though farmers don’t use elephants in the U.S., pigs are common, and these animals are also more intelligent than we once thought.

Legal definitions have power— inclusion in a definition bestows rights. Exclusion denies them. Our values are clarified when there are arguments over what should and should not be included in a legal definition. We know that bees aren’t fish and elephants are not human, but in the specific circumstances of these cases, it is logical to entertain arguments that essentially claim the opposite.

A long read on Happy’s case and life can be found here.