The writ of habeas corpus is a legal tool with a complex relationship to carceral practices. The writ has functioned both to liberate illegally-detained individuals and to affirm the validity of underlying systems of legally-authorized incarceration. The so-called “Great Writ of Liberty” has thus survived and even thrived in a number of contexts where liberty interests have been systematically denied. Advocacy surrounding the use of the writ on behalf of non-human animals in U.S. courts has, however, tended toward aspirational, sometimes bordering on fantastical, accounts of the writ’s achievements in human justice contexts.
This chapter will introduce a corrective to this superlative vision of habeas corpus, its achievements in human justice contexts, and its potential for animal liberation. This study will argue that one well-publicized advocacy approach, taken most notably by Steven Wise and the Nonhuman Rights Project, overstates the writ’s accomplishments, often relying on an incomplete account of the writ’s history to do so. In particular, this account of the writ’s successes tends to paint struggles against racial violence and inequality as complete, thus minimizing the import of urgent ongoing justice projects. Next, a historical corrective is offered, demonstrating how closer attention to the writ’s actual role in human carceral systems can enrich our understanding of the writ’s limits and potential. This account will emphasize that the writ of habeas corpus operates only to challenge illegal (rather than unjust) detention; that it operates only at the margins of legal confinement systems to contain rather than eliminate carceral practices; and that it therefore serves a role not only in challenging individual instances of confinement, but also in sustaining and validating ongoing carceral practices.
This more critical picture of habeas corpus, however, does not strip the writ of its potential as an advocacy tool for the interests of non-human animals. This chapter will argue that animal advocates might join other social justice movements in adopting a more ambivalent embrace of rights litigation. It is possible, often necessary, for advocates to turn to legal tools without adopting an uncritical posture toward law. Indeed, as with other ambivalent embraces of rights—including historical uses of habeas corpus—litigation is often a critical tool in bringing political attention to social injustices. This chapter will propose that the greatest potential offered by the writ of habeas corpus is a focus on liberty that invites advocacy spotlighting the experiences of animals living within human systems of violence and confinement. It is this prospect of exposing and exploring the harms of human domination of other species—not any fantastical account of the writ’s human achievements—that gives habeas corpus its most meaningful transformative potential.