Another approach, the one taken on behalf of Happy by the Nonhuman Rights Project (NhRP), a sort of animal ACLU, relies on common law. It takes inspiration from abolitionists who used habeas corpus petitions to establish the personhood, and gain the freedom, of people held in bondage. Both strategies risk pitting animal-rights activists against environmentalists, two movements that have often found themselves at odds. (Environmentalists, for instance, wanted wolves in national parks, but accepted that wolves outside the park could be shot by hunters and ranchers.)

This case isn’t about an elephant. It’s about the elephant in the courtroom: the place of the natural world in laws and constitutions written for humankind. In the wild, the elephant is a keystone species; if it falls, its entire ecosystem can collapse. In the courts, elephant personhood is a keystone argument, the argument on which all other animal-rights and even environmental arguments could conceivably depend. Elephants, the largest land mammal, are among the most intelligent, long lived, and sentient of nonhuman animals, and, arguably, they’re the most sympathetic. As moral agents, elephants are better than humans. They’re not quite as clever, but, as a matter of social intelligence, they’re more clever than every other animal except apes and, possibly, bottlenose dolphins, and they’re more decent than humans. They live in families; they protect their young; they grieve their dead; they don’t eat other animals, and they don’t cage, isolate, and torture them. Elephants appear to possess a theory of mind: They seem to understand themselves as individuals, with thoughts that differ from the thoughts of other creatures. They suffer, and they understand suffering…

No historians have been involved in the case. But elephants, who can live into their 70s, appear to possess not only a theory of mind but also a theory of history: They seem to understand their lives as a series of events that take place over time; they remember the past and know that it’s different from the present; they might well wonder and worry about the future. Most other nonhuman animals live in the present—so far as humans know, anyway—but elephants are, like humans, historians.