You are on a lifeboat with a few other (human) people and a (small) elephant. The boat is overloaded and some of its occupants have to jump or be thrown overboard. Your task is to decide how you should (not would) proceed. Suppose you decide the fair thing to do is to draw straws. Everyone deserves to be treated equally. But now the question you face is this: do you give the elephant a straw to draw?
Advocates on behalf of Happy, an unhappy elephant in the Bronx Zoo, have argued, in amici curiae in support of her case being heard in appeal in New York, that she deserves to be accorded rights because she has the attributes of personhood in that she is self-aware and capable of acting intentionally which satisfy the requirements for having moral standing.
I don’t know if Happy is really self-aware and capable of acting intentionally. Her advocates say she is because she passed what is known as the mirror test for self-awareness. Children (from age two on) as well as chimps, do as well. Without their awareness, a mark is placed above the eye of the subject where they can’t see it without a mirror. Then when placed in front of a mirror, experimenters observe whether the subject touches the spot. This, it is argued, is a reliable test for self-awareness which is a sufficient condition for personhood and with it, moral standing. But it not just humans, chimps and elephants that pass the test. A veritable carnival of animals do so as well, all the way down to the lowly Cleaner Wrasse (Labroides Dimidiatus) – a four and a half inch fish.
You may say, so be it. The more the merrier when it comes to embracing nature’s bounty and according it respect. But we should be wary about doing so by being promiscuous when it comes to granting moral standing and with it rights. You may be tempted to say elephants have rights, but they are just different in degree from our rights. But that is an oxymoron and opens the way to our own sordid history in the treatment of the “other” including women and people of color. The great social achievement of the very idea of rights and rights bearers is that it is an all or none concept. It does not come in degrees. To say something has moral standing, and thereby is a rights bearer, is just to say that they deserve equal treatment. To take a moral stance is to blinker oneself to what makes us different from each other, to what makes us favor some over others, and to how self-interest undermines fairness.
Must we treat Happy as an equal and give her a straw to draw on the lifeboat then? If we were convinced that she was self-aware and capable of acting intentionally, I would say we should, just as we should when it comes to an intelligent visitor from outer space – being human is not a necessary condition on being a person and with it, a rights bearer.
But suppose we are not convinced. Then what?
Lawyers for Mary Jane, a lake in Florida, are in court in Orange Country, arguing that it too should be accorded rights. But that is not to say that they are claiming Mary Jane is a person.
The idea that a lake be accorded rights harkens back to a law-review article authored by Chris Stone in 1972 titled “Should Trees Have Standing – Toward Legal Rights for Natural Objects.”
Stone thought it was a mistake to try to ground legal rights on personhood. Unlike philosophy, he argued, common law develops, not by principle, but by the gradual extension of its reach. Laws that benefited white men were not extended to women and people of color because they were recognized as people. Rather, society came to recognize the disenfranchised as people as a consequence of those laws being extended to cover them.
Which brings us back to Happy. We don’t need to agree that she is a person and has moral standing for her to gain legal standing, which is what her advocates want her to be granted.