Abstract
The principle of human dignity has been evolving along history. It has been understood and explained within the context of cultural, ethical, and religious conditions. The Egyptian legal system clearly recognizes this principle in various legal texts related to the respect of international treaties of human rights; however, in reality, it is not effectively implemented. This paper discusses the recognition of the human dignity principle in the Egyptian legal system and the obstacles that impede its effective implementation.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Kant, E. (1980). Fondements de la métaphysique des mœurs. Paris: Vrin, 105 and s.
- 2.
The thing is evaluated by a price because it is possible to replace it with something else of equal price.
- 3.
See in this regard, Maurer, B. (1998). Le principe de respect de la dignité humaine et la convention européenne des droits de l’homme, PhD, Montpellier I University, 106 and s.
- 4.
Hennette-Vauchez, S. (2008). Une dignitas humaine? Vieilles outres, vin nouveau. Droits. Revue de théorie, de philosophie et de culture juridiques, 48:1–21. Baertschi, B. (2005). Enquête philosophique sur la dignité. L’anthropologie philosophique et l’éthique des biotechnologies. Genève: Labor et Fides. Quoted by Ogien, R. La “marchandisation du corps humain”: les incohérences et les usages réactionnaires d’une dénonciation, May 15, 2012: Raison-publique.fr, http://www.raison-publique.fr/article534.html.
- 5.
According to philosophical thought, dignity is the essence of human nature. However, the problem is actually the definition of the human person. The doctrine does not agree on this definition: does it include the conceived child and the person who is considered clinically dead? Does the conceived child have the same dignity? Some jurists consider that dignity is an essential right but the person entitled to it, is variable and ambiguous. See, in this regard, Maurer, B. Le principe de respect de la dignité humaine et la convention européenne des droits de l’homme, op. cit., 84 and s.
- 6.
Article 51: “Dignity is the right of every human being and may not be violated. The State shall respect and protect human dignity”. See also Article 78: “The State shall ensure the citizens’ right to adequate, safe and healthy housing in a manner which preserves human dignity and achieves social justice”.
- 7.
Articles 55 and 56: “Actions inconsistent with human dignity or which endanger human health (of the prisoner) shall be prohibited”.
- 8.
Article 52: “Torture in all forms and types is a crime that is not subject to prescription”, “no one shall be subjected to torture, cruel, inhuman or degrading sanctions nor treatments”.
- 9.
Article 60: “The human body is inviolable […]”.
- 10.
Article 61.
- 11.
Article 89: “All forms of slavery, oppression, forced exploitation of human beings, sex trade, and other forms of human trafficking are prohibited and criminalized by Law”.
- 12.
Article 40 of the Criminal Procedure Code.
- 13.
Article 15/2 of the same Code provides that crimes related to personal liberties and physical integrity are not subject to statute of limitations.
- 14.
Article 160 of the Egyptian Criminal Code.
- 15.
Articles 93 and 151.
- 16.
Dar Al-Iftaa is held by the mufti and his administration. The mufti presents himself as a juris consult, called to intervene with private individuals or official bodies, in order to advise and guide believers on the path of Islam. Jurist and theologian, he poses as an authorized interpreter of the Islamic norm, questioned as such by all who wish to act in accordance with the provisions of the Shari’a. His role is the link between the theoretical knowledge and the pragmatic experience. He therefore represents an adaptation of the Islamic norm to the contemporary realities. Thus the mufti has contributed to the development of practical legislation which is a reflection of his time. His answers are then analyzed in as many legal consultations which, even if they are without binding force, nevertheless ensure a certain censorship of behavior in terms of religion, morals and law. On the origin of the function of the mufti and his role in relation to Muslim law, see Paradelle, M. (1992). L’institution du mufti et de sa fatwâ dans le droit islamique, mémoire de DEA, IEP d’Aix-en-Provence; also see, Tyan, E. (1960). Histoire de l’organisation judiciaire en pays d’Islam. Leiden: Brill.
- 17.
Shaikh-Al-Azhar plays the role of shaikh al-islâm in Egypt. Shaikh al-Azhar and the mufti practice the role of guardians of the shari’a and moral censorship.
- 18.
We can observe the same discomfort about the Universal Declaration of Human Rights of 1948, which is deprived of all its religious references, which was also emphasized by the adoption in 1981 of a “Universal Islamic Declaration of Human Rights” that was adopted as well in 1990 by the Organization of the Islamic Conference.
- 19.
For example, see Mokhtar al-Hkadmy, N. (2002). L’ingénierie génétique à la lumière de la Shari’a musulmane. Majallat al-Bouhous al-fiqhia al-mo’assira, 13(52); Mokhtar al-Hkadmy, N. (2001). Le clonage à la lumière des principes, règles et buts de la Shari’a. Dar al-Zahmm, al-Ryad; Negm, S. (1996). L’introduction islamique à l’ingénierie génétique. Majallat al-Magm’a al-fiqai al-islami bi Mekka al-mokarama, 8(10); Abdelhalim, R. (1998). La protection juridique de génome humain. Cairo: Dar al-Nahda al-Arabia.
- 20.
According to A. Guiderdoni, “Ethics, in so far as it is what allows man to remain human, cannot do without an answer to the question: who is man? The hesitations of current ethics are hesitations that relate to the answer to this tough question. To present the founding principles of ethics in Islam, therefore, requires first to address the question of Islamic anthropology, entirely defined by the relation of man to God”. See Guiderdoni, A. (2001). Les principes fondateurs de l’éthique en islam. Revue d’éthique et de théologie morale, Le Supplément, 2017:88. The author remarks, for example, that “the Arabic adjective akhlâqî, which intends to correspond to the adjective “ethical”, already has a quite different consonance because, by its root Khalaqa, it refers to the idea of creation by God”.
- 21.
The treatise says: “Know that this profession is a gift from Almighty God, who transmits it to those who deserve it, for he [physician] becomes the intermediary between the sick and the Lord in the quest for healing which, once concretized, will deserve the blessings of the men for whom he becomes an example as well as a man to be trusted. Retribution and reward will await him in the Hereafter, for the welfare of God’s creatures, especially to the poor, is invaluable. With the moral integrity you have acquired, thanks to the values of generosity and mercy, be sure to surround yourself with purity, cleanliness, restraint, clemency and the fear of God, especially when you enter at women’s places. Be discreet hence, for you will be the repository of their secrets, and remain attached to good and to religion. Look diligently into science studies, turn away from carnal pleasures, meet scholars, watch over the sick and work on their healing and, if it were in your power, look after the poor even if you have to do it of your own money”. Mentioned by the Islamic Educational, Scientific and Cultural Organization (ISESCO), in the basic document for the establishment of the Islamic Body on Ethics of Science and Technology, 15.
- 22.
Promulgated by Ministry of Health Decision no. 238/2003 of September 5, 2000, this decree also regulates medical research (Articles 52 and 53).
- 23.
The principle of dignity animates the debates of the Egyptian Medical National Association, notably those concerning the draft act on organ transplant.
- 24.
It is the old idea of Greco-Latin thinkers: in order to understand meaning, it is not enough to know words, but also to know the things of which the text speaks. This is why, for example, translation is not just a linguistic operation; but an operation on facts related to a whole cultural context. This illustrates the profound opposition between formal and semantic linguistics. According to M. Breal, “let us suppose that to know the Roman magistracies we have only the etymology but not the history of terms as consules, praetor, tribunus, etc., we would not understand them”, see Breal, M. (1904). Essai de sémantique. Paris: Hachette, 3e ed., 113.
- 25.
Either in the same society or in other societies. In the same society, it is the relationship between language and multiple languages. In other societies is the comparative study of systems.
- 26.
According to A. Meillet, “Every vocabulary expresses a civilization. If we have, to a large extent, a precise idea of the French vocabulary, it is because we are informed about the history of civilization in France.” See Meillet, A. (1938). Linguistique historique et linguistique générale, t. II. Paris: Klincksieck, 145.
- 27.
The term “founding moment” refers to the moment when a society adopts a worldview, a philosophy. For more information on this expression, see Abdelhamid, H. (2002). Introduction historique au droit. Cairo: Dar el-Nahda el-Arabia, 16 and s. (Book in Arabic).
- 28.
Philosophy is an attempt to view the world as a whole. It divides, articulates the world into its elements that translate the main terms of the language.
- 29.
In this sense, see Ferreira Da Cunha, P. (2000). Le droit et les sens. Paris: L’atelier de l’Archer, 9.
- 30.
“If we call ethnography (this term corresponds to the description of what has been called civilization) a complete description of the total culture of a given community, and if we call cultures the set of activities and institutions by which this community expresses itself […] We can subtract from this definition the relationship between language and each of the other cultural systems will contain all the meanings of the linguistic forms and constitute the metalinguistic of this culture”. One can criticize the term “metalinguistics” and the idea that American “metalinguistics” makes connections between cultural systems and the linguistic system. But American linguistics is right on one point, the point of departure: “the content of the semantics of a language is the ethnography of the community that speaks that language.” See Mounin, G. (1963). Les problèmes théoriques de la traduction. Paris: Gallimard, coll. «Tel» , 233–234 and the references that he listed.
- 31.
See our article, Abdelhamid, H. (2007). Langue, Langage du droit et culture: un phénomène d’interaction. In Existe-t-il une culture juridique francophone? Actes de colloque, université de Toulouse I, ed. H. Roussillon, 59–77. Toulouse: Presses de l’université Toulouse 1 sciences sociales.
- 32.
In this sense, see Maurer, B. Le principe de respect de la dignité humaine et la convention européenne des droits de l’homme, op. cit., 413 and s. The author distinguishes between “fundamental dignity” and “actuated dignity”. The fundamental dignity refers to the humanity of man, to what bases his belonging to the human species. Human dignity is not granted or determinable, it cannot be lost and it is universal, that is, it is the same for every human being at any time and place. The “actuated” dignity refers to the person in act, to their act, to their autonomous development, to their capacities.
- 33.
The “dignitas humanae substantiae”.
- 34.
Quran, 42, 11.
- 35.
Article 1, a.
- 36.
Article 1, b.
- 37.
Like Article 2 (the right to life, the condemnation of the means leading to the extermination of the human species, the preservation of the continuity of the human species and the integrity of the human body).
- 38.
Article 25.
- 39.
We mention, in particular, on the international level, the United Nations Universal Declaration of Human Rights of December 10, 1948 (“inherent dignity and of the equal and inalienable rights of all members of the human family”, preamble); the American Declaration of the Rights and Duties of Man of April 30, 1948 (“all men are born… equal, in dignity”, preamble); the European Parliament Declaration on Fundamental Rights and Freedoms adopted in April 12, 1989 (“Human dignity shall be inviolable”, Article 1). As well, many constitutions, at the national level, proclaim that “human being dignity is intangible” (Article 1 of the German Fundamental law of May 23, 1949) or that “the person dignity is the base for the political order and social peace” (Article 10, Spanish Constitution of December 27, 1978). On these texts and others, see Seriaux, A. (1997). La dignité humaine, principe universel du droit. Acta philosophica, 6(2):289–301.
- 40.
Preamble of the United Nations Universal Declaration Of Human Rights of December 10, 1948.
- 41.
Seriaux, A. La dignité humaine, principe universel du droit, op. cit., 296.
- 42.
Article 1 of the Human Rights Declaration of the Organization of the Islamic Conference. In the constitutional proclamation of the 1971 Constitution, it is also said: “We, the Egyptian people, in the name of God and with His assistance pledge to indefinitely and unconditionally exert every effort to realize: […] 4) The freedom of the Egyptian man having realized that man’s humanity and dignity are the torches that guide and direct the course of the enormous development of mankind towards its supreme ideals”.
- 43.
No. 25 of the year 1929, amended by Law no. 100 of the year 1985.
- 44.
Articles 274, 277, 237 of Egyptian Criminal Code.
- 45.
High Constitutional Court, case no. 8, judicial year 16.
- 46.
Administrative Court, case no. 26578, judicial year 62; Administrative Court, case no. 46554, judicial year 66.
- 47.
See, for example, Cass. Civ., no. 87, judicial year 59; Case no. 572/1984, Southern Civil Court, Cairo; Cass. Civ., no. 137, judicial year 59; Cass. Civ., no. 288, judicial year 58; Case no. 240/1986, Southern Civil Court, Cairo; Case no. 4957, Judicial Year 104, Cairo Court of Appeal; Cass. Civ., no. 307, judicial year 58; Case no. 1007, Judicial Year 104, Cairo Court of Appeal; Cass. Civ., no. 506, judicial year 62; Cass. Civ., no. 3014, judicial year 59; Cass. Civ., no. 3517, judicial year 62; Cass. Civ., no. 3619, judicial year 63.
- 48.
High Constitutional Court, case no. 8, judicial year 16.
- 49.
Administrative Court, case no. 26578, judicial year 62; Administrative Court, case no. 46554, judicial year 66.
- 50.
Act no. 94 of 2003 defines the role of the Council in relation to complaints submitted to it. It shall draw up an annual report on the situation of human rights in Egypt and submit it to the President of the Republic and the Parliament.
- 51.
Established under Republican Decree no. 90 of 2000.
- 52.
Established under Republican Decree no. 54 of 1988, the Council is the supreme authority responsible for formulating public policy proposals and has the authority to make any necessary decision in order to achieve its objectives.
- 53.
The General Directorate for Human Rights and Social and International Humanitarian Affairs has as a mission to examine international social and humanitarian issues, independently of its fundamental mission to monitor all human rights issues which are dealt with in the various regional and international meetings and are concretely expressed in the form of declarations, resolutions, conventions, protocols and other documents.
- 54.
The Department of Human Rights is a department of the Ministry of Justice established by Decree no. 3081 of 2002.
- 55.
The Supreme Human Rights commission was established in virtue of the ministerial decree no. 22562 of 2001 and gather representatives of police and security authority managers of the Ministry of Interior. It put in place a mechanism aiming at ensuring the observance of human rights and fundamental freedoms. This mechanism has a mission to spread the culture of human rights among all its employees, officials and other civil or military personnel of the various departments of the ministry and to enable them to better understand the universal values inherent in Egyptian culture.
- 56.
The Human Rights Commission was established within the Ministry of Social Affairs pursuant to the Ministerial Decree no. 41 of March 01, 2004. It is formed by Ministry senior officials and is required to prepare periodic reports on the Ministry’s human rights initiatives and to examine complaints received by the Ministry concerning violations of the human rights of specific groups such as children, women, people with disabilities and the elderly.
- 57.
Decree no. 1791 of November 28, 1996 of the Ministry of Education.
- 58.
Thus, in 1981, in Kuwait, the first international conference of Islamic medicine led to the drafting of an Islamic Code of Medical Ethics, see International Organization of Islamic Medicine, Islamic Code of Medical Ethics, Kuwait, 1981. In 1985, in Cairo, under the auspices of Al-Azhar University, the first congress of Islamic sciences was held, which included the theme of the inimitability of the Qur’an and it has legitimated the existence of an Islamic sensitivity in the development of health sciences, see Botiveau, B. (1998). Droit, religion, questions de bioéthique. Éléments d’identification dans la région moyen-orientale. Journal international de Bioéthique, 81–86 and Moulin, A.-M. (1991). Bio-éthique en terres d’Islam. In Bioéthique et Cultures, ed. C. Debru, 86–95. Paris: Vrin. At this 1997 session, the Council called for the setting up of ad hoc committees of experts and scholars to define the rules of ethics in the field of biology for their subsequent adoption by the Islamic States (see the recommendations test in Belkhodja, M. H. (1998)). L’Islam et la biologie. Journal international de Bioéthique, 59–66 et Rafaâ, K. (1999). Les apports de l’Islam dans l’éthique médicale, les liens de parenté et la spécificité des grands concepts humanisant: éthique, morale, conscience et déontologie. Revue du Conseil supérieur islamique.
- 59.
On this question, see Ducruet, J. (2001). La bioéthique institutionnalisée. Travaux et Jours: http://www.fm.usj.edu.lb/anciens/files/bioethique/bioinst.pdf.
- 60.
Ferrié, J.-N., Boëtsch, G. and Ouafik, A. (1994). “Vécu juridique”, norme et sens de la justice: à propos de l’avortement au Maroc. Law and Society, 28:677–690, quoted by Dupret, B. 1996. La sharî’a comme référent législatif. Égypte/Monde arabe, first series, 25: http://ema.revues.org/844.
- 61.
Ferrié, J.-N., Boëtsch, G. and Ouafik, A. “Vécu juridique”, norme et sens de la justice: à propos de l’avortement au Maroc, op. cit.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Abdelhamid, H. (2018). The Reality of the Human Dignity Principle in the Framework of the Egyptian Legal System. In: Feuillet-Liger, B., Orfali, K. (eds) The Reality of Human Dignity in Law and Bioethics. Ius Gentium: Comparative Perspectives on Law and Justice, vol 71. Springer, Cham. https://doi.org/10.1007/978-3-319-99112-2_11
Download citation
DOI: https://doi.org/10.1007/978-3-319-99112-2_11
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-99111-5
Online ISBN: 978-3-319-99112-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)