The present work analyzes the existing conflict betweent the current concept of death created by a positivist juridical system,in front of the many economical social and cultural aspects that involves the process of death, through a retrospective study of the historical context of the positive schools, analyzed in critical way with the evolution of theconcept of dea-th. Considering in such confrontation, in one side the rigidity of the law, of the objective norm imposed by the State, and in the other one, the ephemeral , sub-jective “moment” of the death, even though the preca-riousness of the brazilian public and private hospitals, either for the lack of qualified professionals or equip-ments of advanced technology that are necessary to identify this “moment”.