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Aristotle and Animal Law: The Case for Habeas Corpus for Animals

By CHARLES EDWARD ANDREW LINGOLN IV*

Introduction

~HIS ARTICLE. ARGUES THAT, ONTOLOGICALLY, the right to habeas colptiss comes from an ability to have a cognitive capacity. This is not intended as a scientific journal but rather a philosophical and legal argument. Arguments have been made using theoretical and philosophical bases for animal rights-as well as natural philosophical rights in general. Aristotle has provided a foundation for analyzing the character and structure of natural rights.'

The definition of the soul-to Aristotle-includes three levels.2 This theory of Aristotle's soul is not novel; it has influenced thinkers from pre-Christian times and beyond. This theory was also featured in the U.S. Supreme Court decision Roe v. Wade, regarding abortion rights.3 The first level of the soul is the nutritive aspect, which enables

4: Charlie Lincoln is a Ph.D. candidate at the University of Groningen (Rijksuniuersiteil Gmningen). He has an LL. M . in Tax Law from Boston University ( 2018 ), an Advanced LL.M. in International Tax Law from the University of Amsterdam (Universited van Amsterdam) (2017), and a J.D. from Texas AScM University School of Law (2016).

1. Ana Marta Gonzilez, Natu,-al Rzght and Coercion, iTt 'I'HI,' THRi:ADA c)F NAT'uRAI. LAw:

UNRAVELLINC; A PI-]II.C)suPHICAL TRAI)[1-IC)N 85,86 (2013)

2. "Aristotle .. focused on empirical biological investigations and defined the soul as 'an actuality of the first kind of a natural organized body.' Aristotle also viewed h timans as having a sequence of souls (vegetative, sensitive, and intellectual), the sensitive soul being acquired sometime after fertilization ." Brenclan ( Bo ) F . Pons , 7'he Imu and Philosophy of Persoithood: Where Sh. ould South Dakota Abortion Lmu Go from. Here ?, 58 S . D . L. Ri v . 1 19 , 141 (2013). See Aristotle, Aristotle De Aninia, (R.I). Hicks trans., Cambridge Univ. Press Ware- house 1907) (in Book Il of De Anima, Aristoile accounts for the three parts of the soul as falling into five categories: nutritive (Opeirrixov), sensory (aici011-rikdv), appetitive (6pti<ril<ov), locomotive (KivrlriK6v). thinking (61avon'rilcov)).

3. Roe v. Wade, 410 U.S. 113, 11.22 ( 1973), modqied, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

Early philosopliers believed that the embgo or fetils did not become formed and begin to live until at least 40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist.Anim. 7,3.5831); Gen.Anim. 2.3.736, 2.5.741; I Iippocrates, Lib. de Nat. Piter., No. 10. Aristotle's thinking derived from his three-stage theon, of life: vegetable, aninial, rational. The vegetable stage was

1

2 UNIVERSITY OF SAN FRANCISCO I_AW REVIEW [Vol. 55

living things tO nourish themselves-this as,pect of the soul is shared by all living things, including plants.4 The second part of the soul, the locomotive, distinguishes animals from plants. The locomotive por-

66tion of the soul allows animals to engage in goal-directed behavior in order to achieve their conscious and unconscious goals."5 Whereas the third, the rational part of the soul, which enables "reasoned pur- poseful conduct, distinguishes humans and animals.6

Whether one accepts Aristotle's conception of the soul-perhaps more accurately translated as psychology or "aspects-of-existence"-is

reached at conception. the animal at "animation," and the rational soon after live birth. This theory, together with the 40/80 clay view, came to be arce'pted by early Christiaii thinkers. The theological debate was reflected in the writings of St. Au- gustine, who made a distinction between embryo inanimatils, not yet endowed with a soul, and emblyo animatus. He may have drawn lipon Exodus 21:22. At one point, however, he expressed the view that human powers cannot determine tile point during fetal development at which the critic:al change occurs. See Au- gustine, De Origine Animae 4.4 (Pub.Law 44.527). See also W. Reany. The Crea- tion of the Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Aix)rtion in Canon Law 15 (Catholic Univ. of America, Canon I.aw Studies No. 162, Wash- ington, D.C., 1942).Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later, Augustine on abor- tion was incorporated by Gratian into the Decrctum, pzil,lished about 1140. Decretwn Magistri Gratiani 2.32.2.7 to 2.32.2.10, in 1 Corpus Juris Cianonici 1122, 1123 (A. Frieciberg, 2(1 ed. 1879). This Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of 1917.For discussions of the canon-law treatment, see Means I, pp 411-412; Noo- nan 20-26; Quay 426-430; see also J. Noonan, Contraception: A Ilistory of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965),

Id. 4 . Christopher Shields , Aristotle 's Psych.otqgy, STANFORD ENcY( I .() 1 ' 1 . DIA PIM .. (Jan . 8 ,

2016), htt],s://plate).stanford.edu/entries/aristotle-psychology/ [littps://perma.cc/TK75 'r3YY]

The broadest is nutrition, which is shared by all natural living organisms; animals have perception in addition; and among natitral organisms humans alone have mad. Aristotle maintains that varions kinds of souls, mitritive, perceptital, and intellectual, form a kind of hierarchy. Any creature with reason will also have perception; any creature with perception will also have the ability to take on nutri- lion and to reproduce; but the converse does not hold.

ld. 5. Id. Thus, plants show up with only the nutritive sozil, animals have both perceptual and nutritive faculties, and humans have all three. The reasons why this should be so are broadly teleological. hi brief, every living creature as such grows, reaches maturity, and declines. Without a mitritive capacity, these activities would be im- possible (De Aniina iii 12, 434a22-434b18; cf. De Partibus Animalium iv 10, 687324-690810; Metal,hysics xii 10, 1075a 16-25). So, Aristotle concludes, psy- chology must investigate not only pcirceiving and thinking, but also lizitriiion.

Id. 6. Ralph F. Gaebler, On the Inrompatibility of Political Virtiw and Jitdicial Review: A Neo-

An'stotelean Perspertive, 34 I IAMI.INF I.. Ri:v. 263, 274-75 (2()11).

Issue 11 HABEAS CORPUS FOR ANIMAL.S

arguably a subjective question. Considering its relevance to modern legal debate,Roe u. Wade appears to cite to Aristotle's hierarchical the- ory as a method of determining whether human life has arisen. The Supreme Court seems to argue that if the fetus is capable of par taking in the rational aspect of the soul, then the felus should be accorded rights.7 This frame of analysis was not key to the ultimate Court deci- sion but it does provide a compelling method of analysis: If a being partakes in what Aristotle deems the rational aspect of the soul, then that being should be accorded rights.

The rational aspect of the soul is key to human behavior, as it allows for the ability to speak and communicate with one another. Regarding humans and the soul, Aristotle writes:

The proper function of man, then, consists in an activity of the soul in conformity with a rational principle or, at least, not without it. In speaking of the proper function of a given individual we mean tliat it is the same in kind as the function of an individual who sets high standards for himself.8

However, it is true that many animals partake in the rational portion of the soul. Throughout their lives, animals utilize this aspect of the soul to perform survival fiinctions and to move.i'

7 . Stich argtiments are not novel . Adam Fulginiti , The Soitl and Its Impa. ct on Life and Death C:lioices: A Co),stitutional Stildy of Abortion, the Right to Die, and Other Bioetitical Dilemmas. 11 RiT<.1:RAJ.L. & REI.Ic.toN 459, 466-67 (2010).

8 . Kyron Hitigens , Virtue and Inmlpation, 108 I IARv . L . Ri < v . 1423 , n . 97 ( 1995 ); ser also id. at n.5 (Aristotle writes that we share certain aspects of the soul with other animals and beings, but it is the proper function of a humans to act according to reason and rationality.).

9. Aristotle further suggests that there could be divisions even in the rational aspect of the soul-among these including perception . See Shields , sup,·a note 4 .

Perception is the capacity of the soul which distinguishes animals from plants; incleed, having a perceptive facility is definitive of being an animal (De Sensu L 436b 10-12); every animal has at least torich, whereas mc,st have the other sensory modalities as well (De Anima ii 2413b4-7). In broad terms at least, animals must have perception if they are to live. So, At-istotle stipposes, there are defensible teleological grounds for treating animals as essentially capable of perceiving (De Anima ii 3, 414b6-9, 434a30-b4; De Sensu 1, 436b 16-17).

1(\. Re\)ecca J. Huss, Vallting Man's and Woman's Best Friend: The Moral and Legal Status of Com- panion Animats, 86 MARQ. L. Rn/. 47, 105 n.33 (2002).

Professor Nitssbailin criticizes Wise's characterization of Greek history and asserts that "there is no evidence that [Aristotle] believed in [the view that there was] a universal teleology of nature, such as the 'Great Chaill of Being." Nzissbanni,

51*Ta note 31 , at 1517 . Professor Nussballm references the hundreds of state- ments in Aristotle's biological writings suggesting that each animal's goal is its own life and flourishing to counterbalance Aristotle's oft-cited remark that ani- nials exist for human's sake. Id. at 1519. For a selection of At-istotie's writings that include the inferential statements that "[nature] has made all animals for the

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As such, both animals and humans should be afforded habeas corpus rights. Animals partaking in the locomotive and rational part of the soul should be granted certain legal rights, such as habeas corpus. In short, habeas corpus allows an individual to challenge un- lawful imprisonment and maintain one's liberty.'c~ Habeas corpus is particularly relevant right because it is a right enshrined in the U.S. Constitution and other constitutions around the world. " Moreover, as in cases involving the freedom of slaves, habeas corpus was recognized as a prime example of self-determination of freed persons. ~ 2 Likewise, it has been argued that if animals are self-aware, then they should be granted habeas corpus rights.'3 But still, questions remain: How should rationality be demonstrated, and by what rule or system of characterization of rationality should the law accord the right of Habeas Corpus? These questions can be answered through evidence and science. This Article argues that such characterization could be consistently and effectively applied using Aristotle's hierarchy of the soul outlined in De Anima ( Greek : flepi Tvxfic).

sake of man ," see Aristotle , Animals and Slauery, in ANIMAI . RIGH FS ANI ) HI_ TMAN OBI.[(;ATIC)NS 109-10 (Tom Regan & Peter Singer ecls., Prentice-Hall, Inc. 1976).

Id. 10. I/abeas Corpus, BIACK'S LAW DicTic,NARY (llth ed. 2019) [H]abeas corpus [Law Latin "that yozi have the body"] (180 A writemployed to bring a person before a court, most frequently to ensure that the person's it}ipris- onment or detention is not illegal (habeas corpus acl subjicienclum). In addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain .judicial review of (1) the regularity of the extradition process.

Id. 11. U.S. CONST. art. 1, § 9, cl. 2. 12. Soinerset v. Stewart (1772) 98 Eng. Rep. 499 (U.K.). Iii this case, the English

Court of King's Bench determined tliat slavery was not supported by the common law tradition and statittory law in England (slavery was still sanctioned by law in other parts of the British Empire). Id.

13. One such arguinent is seen in a case from New York: Chinipanzees also demonstrate self-awareness, recognizing themselves in mirrors and photographs and on television, and have the capacity to reflect on their be- havior. They manifest a capacity for enipathy, are attiined to the experiences ancl emotions of others, mid imitate and emulate others. They behave in ways that reflect moral inclinations, and demonstrate compassion and depression when a member of their community or familial group dies. They also have a cooperative social life, engage in imaginan' play, and display a sense of humon Based on this research and tile belief that chimpanzees are autonomous and selfkletermining beings entitled to suc·li fundamental rights as bodily libelly and equality, peti- tioner seeks the issuance of a writ and a determination that [the chimpatizees] are being unlawfully (leprived of their liberty.

Iii re Writ of Habeas Cori)its, The Nonhunian Rights Project, Inc., ex rel. Hercules & Leo v. Stanley, 16 N.Y.S. Sd 898, 902 (Sup. Ct. 2015).

Issiic' 11 HABEAS CORPUS FOR ANIMALS 5

This article is divided into three substantive sections. Section 1 delineates Aristotle's theory of the soul as laid out in De Anima. Sec- tion II defines habeas corpus as a legal concept and demonstrates under what circumstances it should be granted. Section III applies At*- istotle's theory of the soul as a structure whereby animals could be granted habeas corpus rights.

I. Aristotle's Theory of the Soul

In Aristc,tle's De Anima, Aristotle breaks down the concept of the soul into three constituent parts.14 The three parts are the vegetative aspect of the soul, the sensitive (locomotive) aspect of the soul, and the rational aspect of the soul.15

The vegetative aspect of the soul has the qualities of reprocluc- lion, growth, and nurturing for existential purposes. 16 Generally, plants can be described within the vegetative aspect of the soul be- cause plants cio not generally engage in activities that are characteris- tic of the locomotive aspects of the soul. According to Aristotle, the locomotive soul carries the whole anima117 Aristotle would not con- sider oceanic sponges 144-despite being made of animal cells-to par- take in the locomotive aspects of the soul. Such classification is made because a sponge cannot move on its own to a different location. In- cleed, there could be exceptions to this rule, as may be the case with

14 . Adam Fulginiti , The Soid and Its Impact on Life and Death Choices: A Constitutional Study of Abortion, the night to Die, and Other· Bioethiral Dilemmas, 11 RuTc.1,:Rs J.L. & Rl·:I.ic;InN 459, 466 (2010) ("Aristotle also employs a three-fold notion of the soul that has particular significance.31 The three "types" of souls he refers to are the nutritive soul, the sensitive soul and finally, the rational 30111.").

15. fi 16 . Bill Davis , Rebuilding thr 1 ,Valt, 7 ANIMAI . L. 221 , 231 -32 ( 2001 ) ("[wihereas Aris-

totle believed that some animals possessed only the 'most primitive' 'nutritive' and 'repro- ductive' souls, 'certain livag beings Ii.e., humans]-a small minority-possessledl calculation and thought that made thein superior to aniinals that lacked these superior forms of soul.'").

17. ARISTOTI,E, ON 'r'Ht< 501_,1. III, in ON '1'111·. Sc)trI.. PARVA NATLIRAI.IA. ON BREATH. 140.

197-99 (W.S. Hett trans., Harvard Univ. Press 1936).

18. See Speyer v. United States, 14 Cust. Ct. 91.94 (Cust. Ct. 1945) ("Van Nostrand's Scientific Encyclopeclia (1938) contains the following wider 'sponge': An animal of the phylum Porifera .") ; see porifera, STI IMANS MEDICAl , Dicric ) NARY 712090 ( defines a sponge as "a phylum of the Metazoa, comprising a group of sessile, aclitatic animals possessing an endoskeleton and many branching catials, lined by flagellated collar cells; co m m ii n icat ion of the canals with the surface is made through many pores or tilroligh larger openings anct oscula."); see I. Sponges-Phylum Pot-ifera 50 C.F.R. § Pt. 622. App. A.

6 UNIVERSITY OF SAN FRANCISCO LAW' REVIEW [Vol. 55

the Venus flytrap, 19 which tends to have movement ascribed to it. As such, they can be said to partake-at least in part-in the sensitive part of the soul in an Aristotelian sense.

The sensitive or locomotive aspect of the soul accounts for the mobile and sensational aspects of the soul.2(} Animals, fet Ilie must part, partake in this aspect of the soul, as well as the vegetative. Here, one can start to see the creation of a ranking amongst the various aspects of Aristotle's conception of the soul. However, the creation of a ranking or hierarchy was not necessarily the goal of Aristotle's con- ception, but rather an attempt to categorize the differences. There is no indication that Aristotle saw a preferential hierarchy, but rather a categorization-like a Venn Diagram-where certain aspects of the soul of a being engages with others. However, for the soul to fully mature, it is necessary for each "step" to partake in each of the former step (s). The sensitive soul must partake in the vegetative soul. I ike- wise, the rational soul must partake in both the sensitive (locomotive) soul and the vegetative soul.

Finally, there is the rational aspect of Aristotle's soul, which par- takes in both the sensitive and the vegetative aspects of the soul. This aspect of the soul involves thought and reflection, as well as some fur- ther levels of meinory, imagination, and self-propelled motion. The curious thing about some aspects of the rational soul is that there can be overlap between humans and animals-for example, both humans and animals can take part in perception and understanding.21 Even Aristotle admitted this.22 Although Aristotle envisioned humans as

19. For a definition of the functions of a Vemis flytrap see William I-I. Rodgers, Jr, Where Emjironmental Lmu and Biology Meet: Of Paridas' Tliumbs, Stcifittory XI.eepers, and Effective Law, 65 U. Col.O. L. Ri·v. 25, 36 (1993)

Yet another rain forest plant, the Venus'-flytrap, secretes a sweet nec·tar thal hires insects into the midrib of its leaf. On the margins of these leaves are rows of spines that mesh when the leaves snap shiit around an unsuspecting insect. The Ventis'-flytrap then devours the insect iii a reversal of the normal roles of plant and animal,

Id. 20 . Robert F . Bloinquist , Clori.ing End(Lit.gered Animal Species ?, 32 VAL . U . L . RI V . 383 , 398

(1998) ("Aristotle did not find any evidence that plants performed key fimctions per- formed by animals, like locomotion, sensation, and appetite. Rather, Aristotle saw these functions as 'characieristic powers of the aniinal soul, called by him the "sensitive soul" because sensation is the source both of aninml desire and animal movemelit. .„).

21. Klaus Corcilius & Pavel Gregoric, Srpambility Vs. Di#erence: Parts and (.ciparities of the Soul in Aristotle. 89 OXFoR !) S' run . ANCIENT PHIn . 81 , 92 ( 2010 ) Cia lll living beings en- dowed with perception (animals), whether or not they are also in possession of the loco- motive and the thinking capacity, have the nutritive capacity of the soul.").

22. Id.

Issue 11 HABEAS (,ORPUS FC)R ANIMALS 7

partaking in the rational soul primarily, he admitted that certain ani- mals "learn" within their lifetimes, propelling their intellectual pro- gression.23 Such progression is demonstrated by certain individuals within Japanese macaque troops, which have been found to learn new behaviors from generation to generation-e.g. cleaning/washing be- haviors; revenge against other family groups who have previously wronged their own.24

In De Ani,na, Aristotle continues discussing the rational soul from the perspective of an "intellect" existing.25 However, Aristotle sepa- rates the concept of the intellect from the physical and biological mind existing in humans-often conceptualized as "the ghost in the machine."26 Following Aristotle's mode of analysis, medieval thinkers such as Averroes and St. Thomas Aquinas had varying interpretations of Aristotle's concept of the intellect existing separately from the phys- ical mind in a religious sense.27 Indeed, St. Thomas Aquinas took Aris-

23. ARisT(,TI-K, Ht.rroRY OF ANIMALS. BOOKS 7-10, 59 n.c (D. M. Balme ed. & trans..

Harvard Univ. Press 1991) (Balme notes that in Aristotle's conception, "animals do not have the same kind of art and wisdom as hitinans, and their capabilities iii this area can only be compared analogically with the human capabilities.').

24, Pazil H. Robinson et. al., The Onkins of Shared Intuitions of.justice, 60 VAND. L. REV. 1633, 1658 n.97 (2007).

See, e.g, Fillipo Atireli et al., Kin-onented Redirection Amonglapanesr Macaques: An Expression. #a 1~evenge System?, 44 ANIMAl. Bi:HAV. 283, 289-90 (1992) ("Macaqiies might have an indirect revenge system in which kin relationships play a decisive role."); Frans B.M. de Waal & I.esleigh M. Luttiell. Mechanisms of Social Reci- procity in Three Primate Spec:ies: Symmetrical Relationship Characteristics or Cognition, 9 Ethology & Sociobiology 101,114 (1998) COnly this species exhibits what mav be called a revenge system: chimpanzees tend to intervene against iii cli- viduals who intervene against themselves. ).

ld. 25, Lawrence B. Soluni, Virtue Jurisprudence: An Aretaic Theory of Law 10 (Sept. 25,

2007) (working paper), https://www.researchgate.net/publication/228459813_Vii-tite_Iii- rispmdelice_Al,_Aretaic_Theog_of_Law [htt]}s://pe,-ma.cc/T916-WBEG] ("The ititellec- nial virtues are excellences of mind or intellect-what Aristotle calls the rational part of- the sozil; the moral virnies pertain to character zind emotion-the part of the soul that cannot itself reason but is nonetheless capable of following reason.").

26 . Dov Fox , The Right to Silence as Protecting Mental Control, 42 AKRON L . REv . 763, 794 (2009).

Following Plato and Atistotle's speculations that the fanilties of intellect or Soill are distinct from the physical organism, Descartes argued for a divorce of mind from body, distinguishing mental phenomena such as consciousness and self- awareness from material organs such as even the brain. On this accomit. the mind clirects the body like a "ghost in the machine."

Id. 27. Rol}ert Pasnau, The Ls/amic· Scholar Who Gave Us Modern Philosophy, NAT'!. ENDOW-

Mi<NT FOR IIUMANA. (Nov. 2011). hitps://www.neh.gov/humanities/2011/novemberde-

cember/feature/the-islamic-scholar-who-gave-us-modern-philosophy [https.//pernia.cc/ MBWBMYEQ,1.

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totle's construct and applied it to Christian theology.28 Iii this sense, St. Thomas Aquinas applied the concept of the intellect to humans partaking in the belief of the existence of God and thus informing the existence of our rational soul. Correspondingly, animals that partake in the rational aspect of the soul also would be ascribcd intellect through engaging in the belief of the existence of God.

Such arguments are not per se germane to the conception of whether or not habeas corpus should be applied to certain animals. However, it does stand to show that Aristotle's theories on the soul and intellect can apply to different philosophies and systems of analy- sis-such as theology or law.

However, Aristotle's categorizations of the soul do not necessarily explain why there are variations in the behaviors of different animals. Thus, this theory of Aristotle's "soul" is not so much a theory of why

Many of Averroes's interpretations of Aristotle were deeply contentious, especially since they were often incompatible with core teachings of Christianity. When Thomas Aquinas returned to Paris in 1268 for an zinuslial second term as master of theology, he had to deal with the so-called "Averroists" among the philosophy professors who defended the very views that had been controversial a century earlier in Muslim Spain. Against Averroes, then, Aquinas argued that the world has not always existed, 1,tit was brozight into existence anew hy God, thal the very bodies we possess now will be resurrected in the life to come, and that we each possess our own intellect, making us distinct individuals with our own individual destmy

Id. 28 . Allen N . Sultan , Judirial Au,tonomy Under International Law, 2\ U . DAYTON L. Rl · v .

585,664 n.143 (1996). Stumpf credits Aquinas' esteem for his Greek sage to his mentor and fellow Do- minican known to history as "Albert the Great." Pointing out that Aquitias studied under Albert iii both Paris and Cologne, Stzimpf describes Albert's view of Aris- totle in the fc,Ilowing manner: AlberCs particular objective was to make Aristotle clearly understanclable to all of' Europe, hoping to put into Latin al 1 of Aristotie's works. He considered Aristotle the greatest of all philosophers, and much of the credit for the dominance of Aristotle's thought in the thirteenth century must be given to him. It was inevitable, under these circumstances, that his pupil Thomas Aquinas would also see in Aristotle ilie most significant philosophical sii])port for Christian theology

ld. David AJ. Richards, Covert Fundamentalism, 1 WAKE Foxi·.AT J.L. & PoL'y 281, 284 n.16 (2011).

See Ros(:()2: POUND, AN IN'TRODUCTION TO 'THE PHIL.(),SOPHY OF LAw 25-26 (1922) (discussing St. Thomas Acl uinas's role in adopting the Aristotelian distinctions of

justice into modern legal philosophy); BAMFole['1-1 & Ric:HARI)h, supm note 1, at 155 (explaining that St. Thomas Aquinas's philosophical theology relied on Aris- totie's biology, psychology, and ethics).

Id.

Issue 1 ] IIABEAS CORPUS FOR ANIMALS 9

different types of animals exist but a way to categorize their existence in the world.

This concept of existence in the world is consistent with the idea of "entelechia, as expressed in Aristotle's writings, which he explains as something having an end in itself.2~ A translator of Aristotle has written:

Aristotle invents the word by combining entelgs ("complete, full- grown" [avIckul]) with echein (hexis, to be a certain way by the continuing effort of holding on in that condition), while at the same time punning on endelecheia ("persistence" [t\'66kxgla] ) by inserting "telos" ("completion" [Ttlos] ). This is a three-ring circus of a word, at the heart of everything in Aristotle's thinking, inchid- ing the definition of motion."30

In the same translation of Aristotle, Joe Sachs suggests this con- cept can be roughly translated into English as "being-at-wo, k-staying-

29. JOrg Kaininerhofer et. al, 7'he Be,te#ts #the Pure Themy O/-Law.for/nternational Law- yers, or.· What Useis Kelsenian Theory?, 12 IN-A. I.1<(:AI. THI:oRY 5, 18-19 (2006).

Natural law-taken by its word, if yozi will-necessarily entails a breach of the Is- Ought dichotomy. A very (·lear example of such a breach can be found in Aris- tolle's teleological theory (adapted for international law by Alfred Verdross): For Ari s to t l e, al 1 en ti ties ari s t rivi n g t owa rcl t h e i r perfecti on, because only if and w h en they have reached that goal (telos), will they have reached their true nature *hysis). Thus, all beings or entities have an imminent purpose (or goal)-this purpose-oriented nature is their entelechia. This, then, is their objective nattire. The teleological metal)hysics of- Aristotle alone, however, do not yet amount to much in the sphere of practical philosophy. The Crucial "twiSt" is added when

Aristotle considers the nature of humans. Human teloS somehow is (forms) a norm which Inimans have to observe in order to reach completion-the goal prescribes the means. Thus, an Is (human nature) alone supposedly creates ati Ought (an objective norm). Hmnan nature is societal (man as a zoon politik6n, as a state-building being): "[Human beings] thus by their nature are directed towards community with other humans."

Id (7 Slavol Zizek , Ideology Betmen, Fiction and Fantasy, 16 CARI ,c)zo I... REV . 1511 , 1531 (1995).

To make this point clear, one sliould bear in mincl what is perhaps the fundamen- tai lesson of postmodern politics: far from being a "natural" imity of social life, a balanced frame, a kind of Aristotelian entelechia towards which all previous de- velopment advances, the universal form of Nation-State is rather a precarious, temporary balance between the relationship to a particular ethnic Thing (patriot- ism. pro patria mori, elc.) and the (potentially) universal ftinction of the market. On the one hand, it "sublates" (in the Hegelian sense of Aufliebting) organic local forms of identification into universal "patriotic" identification; on the other hand, it posits itselias a kind of pseridonatural boundary of the market economy, delimiting "internal" from "external" commerce-economic activity is thus "stibli- mated," raised to the level of the ethnic Thing, legitimated as a patriotic contribii- tion to the nation's greatness.

Id. 30. Jc)1< SA(:HA, ARIST(,1-1.E's PHYSICS: A GuIDED STuny 245 (Rutgers Univ. Press 1995).

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itself." 81 Sachs combines the meanings of the words entelecia and ene?gia by stating that, "[ j ] ust as energel(i extends to entele. cheia because it is the activity which makes a thing what it is , entelecheia extends to energeict because it is the end or perfection which has being only in , tlit oii,411, dlid during activity."3.2

This somewhat harkens to a teleological argument for evolution, which is not necessarily in contrast with Charles Darwin's theory of evolution. Indeed, Aristotle's categorization of the soul on its own does not overlap or contradict Darwin's theories on natural selection and evolutionary biology espoused in On the OTigin Of Species. 3 -3

31. Id. 32. Joe Sachs, Anistolle: Motion and Its Place in Nature, INTERN[,-1 ENCYCLOPED[A OF PHI L.,

littps://iep.utm.edii/aris-mot/ [littps://pernia.cc/£99T-5ASP]. 33. It is interesting to note that one possible translation of"On the Origin of Species"

is into Ancient Greek as "Peri Genesis Toin Eidion." "Peri genesis ton edion"/ 7[tipt ytiveaig TOTV giooiv Peri/ 7[tpt meaing around 01· abotit, genesis/yivcms meaning gene- sis/Origin, ton/toiv meaning the/article eidion/giooiv, c:I60~ov meaning form/species (but used in Plato to indicate an everlasting form that never changes.) The Greek transla- lion with its Biblical reference seems to have the exact opposite implication of a Daiwinian evolutionary implication-yet at the same time maintains a teleological option for evolu- tion . Cf. joan De\F·atiore, Speaking of Evolution: The i fistorical Context of Kitzmilter u. Douer Air.a School District, 9 RuT(. ERS .j · L . & Ri : i . ic , ic , N 1 , 3 ( 2007 ).

Even 1859 is a late start for a discussion of evolution theoly, since that general idea may be founcl in such early sources as the writings of Emped<,cles in the fifth century B.C.E. and those of Aristotle in the fourth century B.C.E. In the intro(INc- tion to On the Origin of Species, Darwin remarked that althotigh Aristotle did not understand natural selection iii any compreliensive sense, he touched on the basic concept. Dat-win noted, for instance, that Aristotle recognized that sharp teeth for biting and flat teeth for chewing had developed in accord with their respective lises. Nor would it be accurate to suggest that the study of evohition in modern scientific terms originated with Darwin, since his work was preceded and accompanied by that ofother scientists, notably the French botanist,Jean-Baptiste Lainarck; Daiwin's grandfather, Erasintis Dat-win; and his contemporaly, Alfred Wallace. Darwin's contrilmtion, and the sotirce of the furror surrounding his work, was his description of the specific mechanism of evohition: natural selec- tion, including the struggle for existence and the survival of the fittest. This view of the origin of species struck immy of his contemporaries as niechanistic, dehii- manizing, ariel above all atheistic in its substitution of what they saw as random chance and brutality for a divine plan, As Kitziniller amply demonstrates, that reaction has by no means run its course even after the world has had more than a century and a half to get used to Darwin's ideas.

/d. at 28-29.

Issue 1 ] HABFAS CORPUS FOR ANIMALS 11

II. Theories of Habeas Corpus

Habeas corpus, as a term, comes from the medieval I.atin phrase roughly translated as you have the body."34 In Medieval Latin, the"

word habeas was zised as a second person singular present/ active sub- junctive form of the infmitive form of habere, which ineans "to have" or " to hold ." 35 The Latin word curpus can mean "body ," "form ," or "sub- stance," but in this context, it translates to "body" in the singular.36 A reader would then fill in the missing words, as " [we command] that you should have the [detainee's] body [brought to court]. "37

The earliest reference to the idea of habeas corpus comes from the 14th century, in an Anglo-French document. It states:

Praecipimus tibi, quod corpus A.B. in prisona nostra sub custodia tua detentlim, ut dicitur, una cum causa detentionis silae quocun- qzie nomine idern A,B. con- seatur in eadem habeas coram nobis apud Westm. die Jovis prox. post Octabis S. Martini ad sub- jiciendum et recipiendum ea quae ciiria nostra de eo adtunc, et ibidem ordinari contigerit iii hac parte, et hoc, nullatemus, omit- tatis periculo incumbente, et habitai ibi hoc breve. 38

This can be roughly translated as: We say/command you/your body A.B. under your care, if held in the/a prison of our own, as we said, one of the detention of the covenant of the day, and the confiscation and the cause of his own, no matter by what the aforesaid A.B. is judged to be in the same, you may have to us...to subdue and gain before him at the time and in the same place and the order of receiving what is to happen to our court, in this point of view. This way bypass risk of damages/ penalty. And there is this writ. St'

34. Habeas Corpus, BI .ACK' S LAW Dic :rIONARY ( llth ed . 2019 ); Charles Alan Wright , THE LAW (,1: FI:m:RAt. COURTS § 53, at 350 (5th ed. 1994) (quoting Secretary ofStatefor Home Affairs v. O'Brien, 11 923] A.C. 603,609).

The writ of hal)eas corpus, by which the legal authority linder which a person may be detained can be challenged, is of immemorial antiquily. After a checkered career in which it was involved in the struggles between the common-law courts mci the Courts of Chanceiy and the Star Chamber, as well as in the conflicts between Parliament and the crown, the protection of the writ was firmly written into English law by the Habeas Corpus Act of 1679. Today it is said to be "perhaps the most important writ known to the Constitutional law of England"

Id. 35, Habeas colpus, ONI.INK E-IYM(,1.0(.y Dicnic)NAIn', https://www.etymonline.com/

word/hal)eas%20corpus [littps://perma.cc/8ES2-1 12H21. 36. Id. 87. Id. 88. Edward Koroway, Habeas Coppus in Ontano, 13.1 0%60<)11 II.41.1. L.J. 149, 149

(1975). 39. Aiithor's translation.

12 UNM<RSITY OF SAN FRANCISCO LAW REVIEW 1 Vol. 55

However, the notion of habeas corpus may have bccn broached in as early as 1215. The Magna Carta provided a ,similar but not thor- ough provision in section 39, which stated, "Nullus balivus ponat ali- quem ad legem, simplici sua loquela, sine testibus fidelibus ad hoc aductis."40 This can be roughly translated as: "no bailiff shall com- mence/start a legal proceeding without faithful/reliable testimony against the person on the specific issue."41 Justice Anthony Kennedy of the U.S. Supreme Court wrote, "Ii] mportant as the principle was, the Barons at Runnymede prescribed no specific legal process to en- force it. [William] Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled."42

The United States adopted the concept of habeas corpus from English common law. The U.S. Constitution, Article 1, Section 9, Clause 2 (known colloquially as the Suspension Clause) states that " [t] he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."43 The federal habeas corpus statute is codified under 28 U.S.C. § 2241.44

Aside from the United States, there is a rich history from various parts of Europe adopting a similar remedy to habeas corpus. This in- cludes the 1526 provision of Fitero Niteuo of the S€*Or£O de Vizcaya (Nelu Charter of the Lordship of Biscay) or the Crown of Aragon in the concept of manifestacidn de personas Likewise , in 1430 , King Wtadystaw II Jagietto of Poland created a similar provision to habeas corpus called neminem captivabimus nisi iure victum There are various other modern examples, as well.

The most remarkable impression of habeas corpus at the intel-na- tional level is within Article 3 of the Universal Declaration of Human Rights, which provides that "everyone has the right to life, liberty and security of person."45 Article 5 of the European Convention on Human Rights also states that " [elveryone who is deprived of his lib-

40 . 1215: Magna C.(irta (I.atin and Engish), ONLINF. I. IRR . LmERTY, https :// oil . liberty fund.org/],ages/1215-magna-carta-latin-and-engish I https://perma.cc/EZGM-7XYS]. See jJohn V. Orth, Taking from A and Giving to B. Slibstantive Due. Process and the Case of the Slrifting Paradigm, 14 Cc)NST. COMMENT. 337, 337 n.4 (1997).

41. Author's translation. 42. Boumediene v. Bush, 553 U.S. 723,740 (2008) 43. U.S. CoNAT. art. I, §9, cl. 2. 44. 28 U.S.C. § 2241 (2020). 45. See Convention for the Protection of Human Rights ancl Fundamental Freedoms,

Apr. 11,1950,213 U.N.T.S. 221; Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787,797 (D. Kan. 11)80); Rodriguez-Fernandez v. Wilkinson, 654 F.Wd 1382 (10111 Cir. 1981).

Issue 1 ] HABEAS CORPUS FOR ANIMALS 13

erty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. .46

Ontologic.illy, the right to habeas corpus comes from an ability to have a cognitive capacity. As stated above, this is not intended as a scientific journal to explore animals' cognitive capacity, but rather a philosophical argument for additional animal rights. Arguments have been macie for theoretical and philosophical bases for animal rights- as well as philosophical natural rights in general. Aristotle has pro- vided a foundation for analyzing the nature of rights in general.47

III. Why Should Animals Have Habeas Corpus Rights? 66

In recent years, the recognition of personhood" (as well as the corollary rights thereto) has been demanded for great apes.48 An often debated subject, personhood is the quality of being recognized under law as having rights equal to other members of a society.44 Per- sonhood for great apes could reduce their suffering,5() protect their dignity,51 and promote equality in the animal kingdom.52 Spain has been at the forefront of pushing legislative changes that have ex- tended human rights to great apes via the personhood argument.53

46. Id. 47. See Huss, supm note 9. 48. Ad·am Koll,er, Standing Uprigh.t: The Moral and Legal Standing of Hitnurns a.nd Other

Apes, 54 STAN. L. Ri:v. 163, 164 (2001). Calling the effort tile Great Ape Project ("Project"), a number of scholars, scien- tists, and activists have organized to demand recognition of moral and legal rights for great apes. In the category of' great apes, the Project includes chimpanzees, boliobos, orangutans, gorillas, and, surprisingly or not, humans. Supporters of the Project would like to see radical changes in the ways we treat great apes. These changes, if- enforced globally, would mean an end to most biomedical ex- perimentation on great apes; would largely eliminate the potential use of great apes for organ donations; would prohibit, or at least require dramatic improve- ments, in tile keeping of great apes in zoos; and wozikl eliminate tile use of great apes as a source of food.

Id. 49 . Emily A . Fitzgerald , (Apelrsonhood, 34 REv. LITIG. 337 , 338 ( 2015 ). 50. Alexandra B. Rhodes, Note. Saving Apes with the Laws of Men: Great Ape Protertion in

a Propeily-Based Animal Lazi) System, 20 ANIMAL L. 191 , 193-94 ( 2013 ). 51 . Ariel L . Bendor & Hadar Dancig-Rosenberg , Animal Rights in the Shadow of the Con-

stituNon, 24 AxIMAL L, 99, 116-17 n.127 (2018). 52. Antionette Duck, Welcome to P~mates' Paradise, Hiiman Rights Not Allowed: Unravel-

ling the Gre(11 Ape Project, 1 REGENT J . INT' L L. 165 , 169-70 ( 2009 ) 53. Id, at 169 ("The approach taken in Spain-to push for legislative changes that will

preserve human rights for great apes and ensure their personhood-reflects a larger goal as well: obtaining a United Nations resohition declaring the fundamental rights of great apes. ).

14 UNIVERSI'IY OF SAN FRANCISCO LAW REVIEW [Vol. 55

Indeed, there have been earlier studies that nonhuman great apes- those apart of the Hominidae taxonomic family of primales-meet the philosophical criteria for personhood; such a test involves ration- ality and intellect to some degree.54

However, it seems that these cavalcades of philosophical inquiry are not as rigorously based. Aristolle's theory of' the soul provides a logically concise account for the "psychological" levels of animals. Such a test and categorization can be systematically applied to differ- ent animals.

As discussed above, Aristotle's theory that the complete soul con- tains three levels is not novel. This theory has influenced a variety of thinkers from pre-Christian times to modern Supreme Court Jus- tices.55 The first level is the nutritive aspect of the soul, that includes plants. The locomotive aspect of the soul distinguishes animals from plants. The rational part of the soul distinguishes humans and animals and is what makes the human soul human based on the ability to think, feel, theorize and reflect. Another key example of the rational aspect of the soul comes from the ability to speak.56 But speech and cognitive ability are not the only prerequisite for rights.57 Regarding humans and the soul, Aristotle writes,

[t] he proper function of man, then, consists iii an activity of the soul in conformity with a rational principle or, at least, not without it. In speaking of the proper function of a given individual, we mean that it is the same in kind as the function of an individual who sets high standards for himself.58

However, it can be demonstrated that many animals-such as the Jap- anese macaque-partake in this part of the soul.59

This is because animals partake iii Aristotle's conceptualization of the rational part of the soul. The rational part of the soul provides f(,r the ability to not only contemplate, but also the ability to think and

54. See Lee Hall & Anthony Joil Waters, From Propmly to Person: The Case of Eve/yn Hart, 11 Si:.·i-oN IIA!.1. CoNST. LJ· 1, 18-27 (2000).

55. See gene,·GUY Potis, supra tiote 2. 56. See Cr'aig Ewasiuk, Escape Routes: The Possibility of Habeas Co*lts Protertion for Anima.ls

Under Modern Social Cont.mrt Theoly, 48 COLUM. HuM. Rrs. L. Ri:v. 69, 110 n. 12 (2017). 57. Spe gmeratly Steven M. Wise, Legal Personhood and the Nonhuman Rights Project, 17

ANIMAL L. 1, 11 n.34 (2010). See Care & Prot. of Beth, 587 N.E.2d 1377, 1382 (Mass. 1992) (meaning that rationality per se and a level of logic should not be the only measure of granting rights. "The Supreme Judicial Court's statement that 'cognitive ability' is not a prerequisite for rights, along with similar.judicial pronouncements, is evidence that auton- omy so powerfully underlies the quality of dignity, which is sufficient to generate tzitida- mental human rights, that courts ilse legal fictions to fill(1 it.").

58. K¥ron J. Huigens, Virtue a,id Inculpation, 108 1-IAR\'. L. REv. 1423,1480 n.97 (1995). 59 . Robinson et al ., Suff,·a note . 24 .

Issue 1] HABEAS CORPUS FOR ANIMALS 15

reflect, as well as the ability to use memory, imagination, and self-pro- pelled motion-the types of things that we associate with feelings of emotions, thought, and rationale. These attributes are the values we see in humans that justify certain rights. Therefore, because animals have such capabilities, they should be granted the types of rights all forded to humans, such as habeas corpus.

Conclusion Because Aristotle's conception of the soul provides a systematic

way to evaluate the philosophical basis 01 rights, it could add another method of inquiry that is fruitful and helpful for establishing further personal rights for animals. Based on this precedent, such an analysis could be a useful tool for not only analyzing animal and human rights, but also-should the case arise-rights for sentient artificial intelligence.

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