Tanatology: Historical-philosophical approach to death in the context of legal medicine and law

the specialized literature. Being demonstrated as Medical-Legal and Law Tanatology contribute to these reﬂections, as well as in the deﬁnition and concept of death, however, it was the philosophers from Plato (428-347 a. C.) and historians that this theme has been addressed in several respects. It is concluded that the way in which to deal with this theme has been transformed over time. Today, the phenomenon of death is medicalized, hospitalized, distanced from the family, society and even academic training. Although Legal Medicine and Law are intrinsically associated disciplines, the theme is still far from both teaching and professional practice. Evidence demonstrating the need to rediscuss the theme in the training of medical and law professionals.


INTRODUCTION
"No one believes in their own death. Or, put another way, in his unconscious, each of us is convinced of our own immortality." Sigmund Freud.
"Who dies, did not die, left first Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br make an overview from the perspective of the philosophers of antiquity who worked most on this theme, the vision of death in the West narrated by the French historian Philippe Ariés and how Legal Medicine and Law have worked this theme in professional practice.

PERSPECTIVE OF THE PHILOSOPHERS OF ANTIQUITY
Death has always been a shadow that hung over the history of human life. By being part of the biological circle of life (being born, growing, reproducing and dying) against it man has never been able to fight.
In the face of the new possibilities provided by the progress of science may even slow it down, but you will never be able to avoid it. Because it is a natural phenomenon, as man has gained consciousness of himself, religion has served as the first point of support to minimize the feeling of mourning in the face of human loss.
There is an insurmountable frontier between the living and the dead that are perpetuated over time, being instrumentalized by customs and beliefs between different ethnic groups at different times. Perhaps that is why it is a ubiquitous theme in philosophical thought of all time.
Although theology, anthropology, sociology, psychology, medical-legal tanatology and law contributed to these reflections, it was the philosophers from Plato (428-347 a. C.), that this theme has been addressed in several aspects.
In Plato, you have the source of everything that was said by Socrates. In particular, on his death in one of his masterpieces -the Dialogue of Fedão/Fédon, where he narrates the facts that preceded his trial, on charges of disbelief to the Greek Gods and corrupting the Athenian youth.
Found guilty, he sat with indotituous strength of spirit before the court that sentenced him to capital punishment. At the age of 71, he was convicted in 399 A. C. by the "Court of Heliastas", composed of representatives of the ten tribes that made up Athenian democracy, being judged by 501 members, with 220 votes in favor of his acquittal and 281 against (PLATO, 2009). His reading reveals that "there is nothing to fear in death." Some epicurean maxims also preserved by Diogenes of Laércio in book X of the book Life and Doctrine of illustrious Philosophers reveal Epicurus' effort to clarify that there is no sense in fearof death (SILVA, 1995).
It begins the Charter with an "exhortation to the exercise of philosophy", considering it as a discipline, whose goal is precisely to make the man who practices it happy. In the following topic, it deals with death, being presented as the most terrifying of evils. He therefore stresses: "it is absolutely necessary to overcome the fear of death; no one should fear it, since there is no advantage in living eternally: what matters is not the duration, but the quality of life." (EPICURO, 2002, p. 14/15 (GOMES, 1994).
Thus, pleasure at rest, as epicurus calls, is precisely "ataraxia", that is, a state of desire always sated and achieved by the perfect balance between the parts of the organism (THE HISTORY OF PHILOSOPHY, 2004). Hence the understanding that "pleasure is the beginning and end of a happy life." (EPICURUS, 1997, p. 37).
Therefore, if philosophy aims to achieve "ataraxia", that is, the imperturbability of the soul, and the concern with death generates disturbance, then such concern should not be the object of philosophy (SILVA, 1995 states that "through the exercise of moderation applied to material goods, present situations, and future projects, it is possible to obtain better use of time and the suppression of the exacerbated desire of material things that hold individuals to life." (BUCHARD, 2012, p. 124).
Strictly speaking, you do not have a life ahead of you, but a life expectancy, which you live for a few more years, which does not allow you to deliberate on the future. Being a thinker of the school of stoicism, he advises to endure adversity as a way to prepare for the death that will surely come.
The separation of the boundary between life and death has been instrumentalized by religions and cults, which were quite visible in ancient societies. Fortunately, behaviors about death are culturally conceived and therefore vary from one time to another because of the structural changes in society over time. In the medieval era (476 to 1453), for example, there was greater concern to understand the role of humanity in relation to its divinity, so the theme death was understood more naturally and was part of the social environment. Death and life interacted undifferentiated in the world of medieval villages and towns according to local culture.
In other times, returns the theme death from the thought of Greek philosophers. One of the philosophers of modernity, Michel de Montaigne (1533-1592), in his teratological philosophy resumes dialogue, although they do not mention Stoic philosophers such as Seneca, Cicero, Epicurus and epicurean Lucrecio directly, he stresses that these philosophers aim to eliminate their existential anguish in the face of death (BUCHARD, 2012).
In rehearsal I. 20 -entitled "what philosophism is learning to die", which integrates a set of essays, Montaigne taking advantage of the moral reflections of Stoic and Epicurean authors, "opposes those who turn their backs to death, trying at all costs to ignore this inalienable fatality of the human condition: [This is because] we will all die." (ORIONE, 2012, p. 463-481). This is because the unbridled attachment itself to life that harms our existence. feared before death and remains intact from devastation, but it is life that endures death and is preserved in it, which is the life of the spirit (SALVIANO, 2012, p. 196).
Indeed, as life is the natural position of consciousness, independence without absolute negativity, so death is the natural denial of this same consciousness, denial without independence, which thus is deprived of the intended meaning of recognition (SALVIANO, 2012).
Another philosopher of contemporaneity, the German Arthur Schopenhauer (1788-1860), also studies death in several of his works. He presents as the cornerstone of his philosophy the book "The metaphysics of love /The metaphysics of death." For him, the same reason that provides the certainty of death also produces a wonderful antidote against it, being able to nullify the vicissitudes of life. On this path, with reason appeared among men, necessarily, also arises the frightening certainty of death. As Schopenhauer points out: But, as in nature, every evil is always given a remedy or at least a compensation, then the same reflection, which originated the knowledge of death, also helps in the consoling metaphysical conceptions, which the animal does not need, nor is it capable. Above all for this purpose are oriented all religions and philosophical systems, which are therefore, first of all, the antidote to the certainty of death, produced by the reflexionante reason from its own means (SALVIANO, 2012, p. 196).
Again, one of the most notable existentialist philosophers of the 20th century, Martin Heidegger (1889Heidegger ( -1976, resumes the thinking of the pre-Socratic Greeks, but is influenced by the Danish Sören Kierkegaard and Nietzsche.
In the work -Ser e o Tempo, published in 1927, reissued several times in Portuguese and other languages dealt with the theme death (HEIDEGGER, 2001(HEIDEGGER, , 2005(HEIDEGGER, , 2007. What is it to be? That was the unsettling question Heidegger asked in this work. It is also his idea that only in the face of death does man acquire a sense of being and freedom.
It is perceived that the central point of his theory is the meaning of "being": the ways and Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br ways of enunciation and expression of being. Thus, the most important thing is to achieve the best sense of being, to face death -the being-to-death.
In this work also brings the concept of being-to-death. The core of his philosophy lies in the existential understanding of death, that is, death is an inner possibility of his own. In other words, the being-in-the-world is a being characterized by the anguish of death. However, this provision must have the understanding that death is present in its existence.
The end of our existence means to be-for-the-end. For the being-to-end-to-end being means being-to-death. In everyday life we have the experience of death. Whether it's the death of someone close to us, whether it's the death of someone who's distant to us, the death of a stranger. That is, death is always that of others and never ours.
Heidegger's philosophy assumes and supports death as a possibility as long as possible at every turn. That is, not a possibility that one can choose. Therefore, suicide is discarded in its philosophy, since suicide is simply to escape the natural possibility.
His philosophy also breaks with the tradition about death as it aims to enable an existential understanding of the being of the "Dasein" (a term that indicated the existence of something conceived in general in its determined character, that is, it must be understood as the existence of being) as being -no one can die in the place of the other (HEIDEGGER, 2005). That is, death is one's private. And each one must know the being, his power his being-tothe-end. "Death is a way of being, that being takes over, at the moment it is. 'To die is enough is alive.'" A phrase consecrated by Heidegger (2001, p. 245).
Epicurus (341 to 270 a. C.) he wrote that while death is alive does not exist and when it occurs it is no longer, therefore death does not exist. In coherence with this thought, Sigmund Freud (1856-1939, "in several of his works stated that there is no notion of death in the unconscious." (ZAIDHART, 1990, p. 23).
In "reflections for times of war and death" he resumes discussions about death (ZAIDHART, 1990, p. 23). These ideas have already been outlined in "The interpretation of dreams", "The theme of the three scums" and "Totem and Taboo", "about narcissism: an introduction", "mourning and melancholy", and in "the Ego and the Id". According to Freud no one believes Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br in his own death, that is, unconsciously we are convinced of our immortality. "Our habit is to emphasize the fortuitous accusation of death -accident, illness, old age; in this way, we betray an effort to reduce the death of a need for a fortuitous fact." (ZAIDHART, 1990, p.

327/8).
With this thought the focus becomes not death itself, but some other event that surrounds it.
Attention is diverted to the outside, to the causes that cause death. That is, a mechanism of defense of the instinct of life that overlaps with the instinct of death. With this understanding, one can deduce that the fear of death would not be directed to the body itself, but to the fear of aggression to achieve self-preservation. How to understand Freud (1987, p. 75): "the fear of death appears as a reaction to an external danger and as an internal process that occurs between the Ego and the Superego." Modern man lives with the idea of catastrophes at all times. Therefore, faced with so much lack of control over life, man tries to defend himself psychically, in an increasingly intense way against death. "Diminishing their physical defense capacity every day, their psychological defenses act in various ways." (KÜBLER-ROSS, 1998, p. 52/85).
In today's society death is practically eliminated from our daily lives -one no longer dies at home, one dies isolated in intensive care units of hospitals, therefore, strategically death is hidden in hospitals (ARIÉS, 2003), to the cold eyes of the feeling of health professionals isolated in bed or in an CTI unit, alone, far from the moral or spiritual comfort of their relatives. Before people could choose where they would die, far or near relatives or in their place of origin. "the days when a man was allowed to die in peace and worthily in his own home are gone." (KÜBLER-ROSS, 1998, p. 85).
By making a parenthesis, the most bummer, the fragmentation of teaching, the product of the increasing specialization of technological progress in medicine, has been giving doctors every day the feeling of increasing power over disease and death. If, on the one hand, it reflects the tendency of future professionals to specialize in the excellence of the science of healing, on the other, when the disease does not yield to the therapy indicated by the said scientific evidence pointed out by the studies in international scientific journals, the patient walks to death, without finding in these professionals people psychologically prepared to deal with suffering for the patient and his family.  (1) year in postgraduate courses (geriatrics, pediatrics, cancerology, medical clinic, anesthesiology, family medicine or Community) and, therefore, each adopts its concepts, methodologies, protocols and therapies proper to a human one.
Perhaps, concern with the follow-up to mourning, since the integral care campaign the individual until after death. However, today, in the view of western man, death has become synonymous with the failure of his knowledge, impotence and even shame. One tries to beat her at any cost and, when such success is not achieved, it is hidden and denied.

DEATH IN THE WEST NARRATED BY HISTORIAN PHILIPPE ARIÈS
In an effort to summarize what sociologist and historian Philippe Ariès narrated about the rites and attitudes around death in his work the "History of death in the West", we seek to highlight some points for reflection on the death of the Middle Ages until the twentieth century.
Since medieval times, symbolic systems involving funeral rites and the feeling of mourning have been preserved, since little or nothing has changed because of the structural changes that have occurred in society. However, "from the eighteenth century the man of Western societies tends to give death a new meaning." (ARIÈS, 1977, p. 41).
In antiquity there was an attitude towards death from the perspective of synchrony and diachrony, as Airès (1977) exposes. That is, while some attitudes remain virtually unchanged, others have arisen at certain historical moments. In ancient times death was one of Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br resignation -the maxim was "we all die". That is, death was seen naturally. Despite their familiarity with death they feared their closeness and sought to keep their distance. That is, the world of the living was separated from the world of the dead.
In Rome, for example, "the Law of the Twelve Tablets forbade burial in urbe, within the city." Cemeteries were situated outside the cities, usually on the edge of roads such as Via Appia and the Alyscamps. Only part of the cemeteries, that is, in the galleries that existed along the courtyard of the churches or cathedrals were covered with ossuários, although these places were more reserved for priests and great personalities of society (ARIÈS, 1977).
The From the 16 th to the 18 th century, the man of Western societies tends to give death a new meaning -"The death of the other". Death is now being represented as a rupture. According to Ariès (2003) there were two changes at the end of the 18th century: complacency with the death of the other and the profound change in the relationship between the dying and his family. He says that from the high Middle Ages to the mid-19 th century, the attitude towards death has changed, but so slowly that almost contemporaries have not realized.
But the brutal changes occurred in the 20 th century; one of them is the tendency to hide the dying, its real gravity and its state; while by the old customs died at home, the patient's room was replaced by the hospital, the family was replaced by the hospital health team and the rite of burial the body passed to professionals, being fulfilled with extreme brevity.
Due to changes in customs, attachment to life and advances in science in the last sixty or seventy years, illness and death have passed to hospitals and ceased to occupy the warmth of the home. The hospital has become the ideal place to provide patient care, as well as increasingly qualified professionals have emerged to provide right care.
Death ceases to be a natural condition to become a pathological, technical phenomenon and becomes a cold event, distant from family, friends, neighbors and even society. In the hospital, the patient dies surrounded by strangers, people with whom he has no affinity, of professionals who usually approach to perform a task or perform a procedure, only; of people who use a language other than the usual one of their day-to-day and their name becomes the bed with the number X or the disease Z (SPLNDOLA, 1994). This bond still tends to move away due to the exercise of distance medicine either because of the systems on duty "stand by" or the use of telecommunications means -telemedicine. In addition, care is already provided by a team, that is, each day the patient is assisted by a different professional. Even the nurse has moved away from the patient, behold, he became nursing manager, that is, he is no longer providing direct nursing care, a task now reserved more to the specialized sectors CTI/UTI.
In this context, there are two paradigms linked to health action: healing and care. In the paradigm of healing, investment is in life at any price, in which high-tech medicine becomes present, and more humanistic practices are in the background (SPLNDOLA, 1994). In this sense, the relationship with death has become very impersonal, cold and indirect due to the very characteristic of technical academic training (FIGUEIREDO, 2013). In the paradigm of communicate, or to express their willfully and independently, the physician will take into account his early directives of will." On the other hand, it pulls the rug: look at what § 2 of the above article says: "The doctor will no longer take into account the anticipated directives of the patient's will or representative who, in his analysis, are in disagreement with the precepts dictated by the Code of Medical Ethics." Therefore, precisely in view of the great increase in the life expectancy of the world population, mainly due to the development of medicine, the legitimate right of the most vulnerable people to speak before dying is removed, through an internal administrative act of a class organ, because the decision will always be in the subjectivity of the paternalistic view or the ethical and humanistic conscience of the professional. By the way, the doctors face the following dilemma: listen to the mouth of their conscience or choose not to comply with the norm, for fear of undergoing a disciplinary ethical process. But, as Ariès (1989) pointed out, with "forbidden death", the new custom requires the dying to die in full ignorance of his death (ARIÈS, 1977, p. 53/54). See, the example of what is happening with the severe pandemic of covid19 that plagued the world, especially the older population, because they died without knowing the reasons for the political polarization of the use of hydroxychloroquine and ivermectin and other medicines.
It is seen, then, that the theme death constitutes one of the greatest enigmas of human existence; but, if, on the one hand, if medicine was given the power to change the natural course, on the other it cannot be forgotten that its noblest role is to alleviate the suffering of those who are about to die, as postulated by Hippocrates de Cos: primum non nocere -to favor or at least not harm, not to act when the disease seems deadly and to attack the cause of the damage (ZAIDHART , 1990). Since the discovery of anatomy, the corpse has become part, "without religious or moral contestation, of the medical field." (FOUCAULT, 2013, p. 138). From here arises the need to detect in the corpse the products of death and disease. Once the body was desacralized by the anatomists, the corpse became the object of science, considering only its physical and biological nature. If, millennially, life carried in itself the threat of disease, and this, the threat of death, in the nineteenth century, this relationship begins to be scientifically thought, as Death is no longer a sign of failure for medicine, since it is now possible to identify its causes.

DEATH IN THE PERSPECTIVE OF LEGAL MEDICINE AND
Thus, the great cut in the history of Western medicine dates precisely from the moment when clinical experience became the antomoclinical look (FOUCAULT, 2013).
Still according to Foucault, it is in the light of death that one can enter into the obscurity of life. Quoting Bichat, he says that the motto of this century is formulated as follows: "Open some corpses: soon you will see the obscurity that only observation could not dissipate disappear." (ZAIDHART, 1990, p. 97).
Thus, death became part of a set of scientific and technical knowledge, followed by ethical guidelines and rules of rights, and behold, societies are governed by normative statutes.
Finally, it is necessary to question how Legal Medicine and law define the phenomenon of death and the distinction between natural, violent death, its suspected cause and concludes Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br by exposing the reasons for the difficulties of the theme death being worked on in professional practice.

CONCEPTS OF DEATH IN THE MEDICAL FIELD
Tanatognosis is the part of Tanatology that studies the diagnosis of the reality of death. The primary objective is to establish the legal cause in the search to determine the hypotheses of homicide, suicide or accidental. In which case, no sentences should be taken to examination of the body, but also to the result of the inspection of the place of death, which is carried out by the criminal investigation (FRANÇA, 2011).
On the other hand, the diagnosis of natural death is made through numerous signs, called signs of death. However, in practice, the criterion of cessation of respiratory and circulatory phenomena is usually adopted (GOMES, 1994), although the concept of brain death prevails.
The criterion of brain death is based on the total cessation of brain activities, for the purpose of removal of tissue after death, as determined by Article 3  Brain death occurs when there is irreversible injury of the entire brain, being verified by two physicians not belonging to the transplant team, as provided for in the said legal device and according to the ethical criteria defined by CFM Resolution No. 1,480/1997, updated  2,173/2017).
One aspect that is important to emphasize refers to the fact that the diagnosis of brain death We saw in the first part of Art. 2 CC that the civil personality begins with its birth as life, but in the second part, it points out that "the law puts safe, from conception, the rights of the unborn child." Soon it is possible for the unborn child to receive goods in donation because he is a subject of law. If someone makes a donation by free deliberation, for example, to the child who is to be born, in the form of the arts. 538/542 CC , for the realization of the transmission of this good there are legal requirements to be observed -proof of life.
Art. 538/CC. A donation is considered to be the contract in which one person, by liberality, transfers assets or advantages to that of another person.
Art. 542/CC. The donation made to the unborn child will be valid, accepted by your legal representative (BRASIL. Civil Code and related standards, 2020, p. 87).
This evidence is fundamental for the purposes of legitimizing legal personality. In which case it will depend on medical-legal examination, since only the examination of the alveolar expansion of the lungs by the entrance of oxygen will prove that the unborn child was born alive. Diagnosis that is made using the oldest and simplest medical-legal expertise called "Galeno's pulmonary hydrostatic docimasia." (FRANÇA, 2011, p. 332).
In the case of stillbirth the donation does not materialize. That is, the good given to the unborn child returns to the donor; however, if he was born, he breathed, and soon after the good was transferred to the child's mother.
Proof that Legal Medicine is a discipline that subsidizes law, therefore, law professionals are required to know the numerous topics addressed by this branch of medicine.

SPECIES OF DEATHS
The civil order specifies several species of deaths, among which are the natural death, presumed and by absence, violent and suspicious. Regarding the death of suspected and Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br violent causes, because it has criminal implications, will be presented in the following section.
Natural death -called death by pathological antecedents, that is, from an acquired morbid state or from a congenital disorder (FRANÇA, 2015). Natural or real is the death attest by doctors when they identify the signs of cessation of life.
Presumed death and absence -the absent ones are presumed dead with or without decree.
In the first case the law authorizes the opening of the definitive succession, in the form of the whether it's an individual or one who is about to be born and is in the mother's womb (criminal abortion) or during childbirth (infanticide) or even in cases to abbreviate someone's suffering (pious homicide).
Suicide -Although it is not considered a crime, the death caused in itself, is still an anti-legal fact, 4.
behold, self-elimination is a conduct contrary to the legal order. So much so that one punishes the attempt and the inducement to suicide.
Instigation or aid to suicide (art. 122/CP). The conduct of inducing or instigating someone to commit 6.
suicide or assist ing them to do so is punishable by seclusion, and the penalty is aggravated by qualifiers when practiced for selfish reasons or the victim is minor.
The death of suspected causes -It is the one that occurs in dubious way, includes in this list the 8.
sudden, accidental death and for which there is no evidence of having been of violent cause or pathological antecedents, therefore, it will be defined after the tanatological examination (FRANÇA, 2015).
Sometimes, the examination may not be able to conclude as to whether it is death by accident, suicide or crime. In such cases, provided that all available means to prove the case of mortis have been exhausted, it is received the legal heading of indeterminate cause (FRANÇA, 2015).
If on the one hand the "mortis of death from the medical point of view, it is all diseases, morbid conditions or injuries that either produced death, or contributed to it and the circumstances of the accident or violence that produced any of such injuries (CID -10)", on the other hand, the legal cause classifies in natural or violent (ALCÂNTARA, 2006, p. 308/9). CONCLUSION We saw that the study of Tanatology is not restricted to a single field of knowledge, academic area or professional activity. A theme that has been discussed since ancient civilizations by philosophers, historians, doctors, jurists and other scholars, but remains an enigma of human existence.
The historical reflection under the three points of discussion proposed, showed first of all how the way to deal with this theme has been transformed over time; second, that death is Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br medicalized, hospitalized, distant from the family and even from society; and, third, how Legal Medicine and Tanatology are intrinsically associated with the science of law.
As a background of the approach, because it is a book whose central theme is tanatology, we also tried to draw attention to the distancing of the theme both in professional teaching and practice. What makes it suppose that there is a need to discuss this theme in academic education, given the enormous difficulty in dealing with discussions related to death and dying.
Although the objectives of the discipline Tanatology Medicina-legal are also intended to train students regarding the ethical-legal aspects of the professional's work, the process of death has been subjected to an economic mercantilism by hospital institutions.
With the vertiginous scientific progress there is a growing predominance of the technique on the disease and the tendency to keep the organism in operation to the maximum through sophisticated equipment, which progress ends up transforming the disease into an object of trade and profit.
In this context, the relationship of professionals in the hospital environment with death became impersonal, cold and direct, even due to the technical and fragmented formation itself. Allied to the difficult reconciliation of technical doing with humanized care reflects the difficulty in talking about death, as shown in a study developed in the first years of this century.
In 2005 In the field of law, the difficulties are even greater, and in the 21st century, it causes a certain perplexity if we discuss the relevance of this knowledge for the training of professionals in the legal career. This fact reminds us that since the changes in higher Tanatology: Historical-philosophical approach to death in the context of legal medicine and law www.nucleodoconhecimento.com.br education in the Empire, culminating in the expansion of the Law Schools, the chair of Legal Medicine in legal education was included by Decree 9,360 of January 17, 1885 as a mandatory subject, but today, it does not even integrate the curriculum, even when it integrates in most faculties is offered as an optional discipline (BRASIL, Decree 9.360/1885).
After all these decades, the edition of In conclusion, although death is a natural and indeferred fact, talking about this topic has always been a subject surrounded by mysteries and anguish. Even those who deal with death in their day-to-day life are not adequately prepared to deal with the phenomenon of death, perhaps for legal professionals.