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Article

French

ID: <

10.4000/add.739

>

·

DOI: <

10.4000/add.739

>

Where these data come from
The legal issue of human remains from the perspective of the dignity of the person

Abstract

The question of human remains covers a variety of issues which the law alone is unable to settle. The concept of human dignity serves to provide some (often bold and sometimes ambiguous) answers. The law has caught up with ethics with regard to the concept of human dignity, the regulatory framework of which was enhanced from 1994 until it was introduced into positive law in 2008 in Article 16-1-1 of the Civil Code, which requires that the remains of the deceased be treated with respect, dignity, and decency. As a result, museums specialising in exhibitions of human remains, such as the Dupuytren or Fragonard museums, may become vulnerable because of the questionable legal status of their activity. After expressing some reservations concerning Notice No. 111 of the Ethics Committee, repeating and recalling the substance of the facts of the Our Body case, we will review the scientific evidence to explain the question of treatment with dignity. Returning later to the central question of human dignity starting from case law developments, with a practical purpose, we refine the concept in order to explain to what extent this principle cannot be applied per se to human remains. This notion helps to explain the erosion of the principle of inalienable public property, which can be used in favour of a restitution policy. This is still at the centre of the debate, since the case of the Maori heads did not resolve the issue of public property acquired by gift or legacy and subject to an absolute principle of inalienability, which is the case for most humans remains preserved in museums. We will look at differing solutions taken from the United States and the United Kingdom. Indeed, these two countries have attempted to reconcile the issue of conservation in museums and the legitimate claims for restitution with a legal framework. To raise the issue of intercultural dialogue is to give life to notions such as a common heritage of humanity or the rights of indigenous peoples in the repatriation of their cultural property.

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