The research focuses on the relationship between death and law, with particular reference to the legal definition of death introduced by Law 578/1993 and the legal and ethical philosophical implications connected to it. In fact it appears that by shifting from a cardiovascular to a neurologic criterion of death, the legislator made a clear ideological choice according to which the most significant element that connotes a person is the encephalic element (more or less extensively considered).
With this regard, on the first part of the essay, I retraced the path that led to the affirmation of the concept of brain death and its acceptance in the Italian legal system, focusing also on the three different meanings in which said concept can be interpreted.
The research aims to verify if the legal definition of death provided by the legislator in 1993 should still be considered “valid” or if, de facto, it was replaced by the recent jurisprudence that, on the so-called borderline cases relates the concept of death only to the high-brain death concept.
The second part focuses on the analysis of the case law in order to highlight the divergences between the jurisprudence and the choice made by the legislator. In this regard, I tried to show how the consideration of the person, that undoubtedly must be considered essential, risks to become only a façon de parler, when it is downsized to the pure ability to show some functions, in particular the volition and the consciousness governed by the upper part of the encephalon. I believe that the loss of an holistic view of the human being typical of modernity, that the definition of death in neurological terms helped to stir up, risks to lead to an empiricists and reductionist attitude in which the person, instead of being the target of the protection, results excluded by such protection each time it could not be still considered as a person, being it deprived of said functions or even impaired.
Therefore, in the last part of the essay the matter is analyzed from a philosophical point of view in order to verify which is the anthropological conception underlying the different thesis and the implications deriving from each of them. In order to do so, I utilized three figures that I believe can be considered emblematic of the debate past and present: Hans Jonas, Peter Singer and Robert Spaemann
