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FREEDOM OF MOVEMENT IN TIMES OF CORONAVIRUS: AN ARISTOTELIAN

BALANCE BETWEEN FUNDAMENTAL RIGHTS AND DUTIES

CLÓVIS REIMÃO1

Summary: 1. introduction 2. the (un)proportional limitations to freedom

of movement 3. the importance of fundamental duties during the
pandemic 3.1. Fundamental duty to stay at home 3.2. Fundamental duty
of solidarity 4. conclusion 5. references

1. INTRODUCTION

Revolutions, wars and pandemics are episodes of great changes in human history. New
societies, new states, new economies and also a new law.
In this paper we reflect on the impacts of the Coronavirus pandemic on the
fundamental right to freedom of movement and the tenuous relationship between fundamental
rights and duties.
Finally, we defend the need for a new post-Pandemic Constitutional Law based on the
Aristotelian balance between fundamental rights and duties and on the achievement of
responsible citizenship.

2. THE (UN)PROPORTIONAL LIMITATIONS ON FREEDOM OF MOVEMENT

In the2Post Truth Age, people believe what suits them. So it is necessary to state the
obvious. No one has the fundamental right to contaminate others. There is no freedom without
responsibility. During the pandemic, the fundamental right to come and go can (and should)
be restricted for the sake of public health.

1
Specialist in Public Law and Civil Procedural Law. Graduated in Law from the Federal University of Bahia
(UFBA). Public Prosecutor of the State of Bahia. E-mail: reimao.clovis@gmail.com
2
In 2016, "post-truth" was voted the word of the year by Oxford University. In short, it means that objective
facts have less importance than emotions and personal beliefs. In other words, truth is left behind, people believe
in what interests them, even if it is a "fake news". On the subject, see: KEYES, Ralph. The post-truth was:
dishonesty and deception in contemporany life. New York: St. Martin's Press, 1st edition, 2004.
 There will be restrictions decreed by states and municipalities, it is certain3. But the
crux of the question is: to what extent can freedom of movement be limited? What are the
limits of these limitations (Schranken-Schranken)? How can one restrict without abolishing
the essential core of the citizen's right to come and go?

The reflection on the subject will be made through some concrete cases, after all, each
Brazilian state and municipality lives its own pandemic reality. These cases will be analyzed
in the light of Robert Alexy's 4maxim of proportionality, even though he is aware of the risks
of solipsism and discretionary tendencies of this theoretical reference 5.

First, it is necessary to make a presumption. The decision of mayors and governors

must be essentially technical. There is no "carte blanche" and no room for "achisms" and
tyrannies in pandemic times. Therefore, the exceptional and temporary limitation to freedom
of movement can only be imposed if there is scientific evidence and technical
recommendation from the competent health department (art. 3, VI and §1 of Law no.
13,979/2020) and if this limitation is proportional.

Let's get to the cases.

We started with the curfew decreed by the mayor of the municipality of Umuarama in
the interior of Paraná. The mayor, without technical advice from a health agency, authorized
the opening of trade during the day and determined the curfew from 10 pm to 5 am6. This
municipal decision is as illogical as it is disproportionate. Release during the day and curfew
during the night? Obviously, the Coronavirus has no clock. Contamination is not restricted to
the night period. Therefore, this municipal decree is disproportionate, because it is not even
adequate/efficient to prevent people from being contaminated. No wonder the STF suspended
that curfew7 and the TJ/PR suspended the reopening of trade8.

3
The STF strengthened Brazilian federalism by ensuring that states, Federal District and municipalities have
autonomy to adopt measures against the pandemic. BRAZIL. STF. APDF 672-DF. Rapporteur Min. Alexandre
de Moraes. Judged in 08/04/2020.
4
We will adopt the criteria of Alexy's analytical theory, namely: adequacy, necessity and strict proportionality
sensu. ALEXY, Robert. Fundamental Rights Theory. Trad. Virgílio Afonso da Silva. 2nd ed. São Paulo:
Malheiros, 2014, p.117.
5
According to Lenio Streck, proportionality does not preclude the discretion of the judge. We chose
proportionality for pragmatic reasons, it is one of the theories most used by constitutional courts in relation to
conflicts of fundamental rights. STRECK, Lenio. Hermeneutica Jurídica e(m) crise: uma exploração
hermeneutica da construção do Direito, Porto Alegre: Livraria do Advogado, 10.ed., 2011, p. 376.
6
See Municipal Decree n° 082/2020 available at:
http://www.umuarama.pr.gov.br/noticias/administracao/decreto-autoriza-reabertura-do-comercio-e-impoe-toque-
de-recolher-em-umuarama. Accessed on 08/05/2020
7
BRAZIL. STF. Suspension of Liminar n° 1315- PR. Min. Dias Toffoli, judged 17/04/2020;
8
PARANÁ. TJ-PR. Bill of Review No. 0020002-72.2020.8.16.0000. Rapporteur: Leonel Cunha, Judged
30/04/2020
 In turn, the Governor of the State of Goiás has decided to close the currency,
prohibiting interstate road transport and air transport (interstate and international) from places
that have confirmed cases of Coronavirus9. The decree dealt with an essential activity1011,
violated WHO recommendations and did not make the ban more flexible even for the poorest
people who need to travel for health treatment, for example. Even Goians who left the state
could not travel back. This means that, in terms of proportionality, although the measure is
even adequate to avoid contamination, it is excessive in violation of the requirement of
necessity. The Supreme Court has already expressed itself on the matter, suspending the ban
for seriously violating freedom of movement.12

The mayor of São Bernardo do Campo (São Paulo), on the other hand, ordered the
obligatory home detention of people over 60, under penalty of fines and other sanctions.
According to the decree, only in exceptional situations the elderly could move around the
city13. This measure is also disproportionate, as it is inefficient and excessive. It is enough to
realize that the majority of the Brazilian elderly still live with their relatives14, so this vertical
isolation does not prevent the contamination of the elderly. Moreover, this measure was not
based on scientific orientation of ANVISA and violated the health policy recommended by
the State of São Paulo15. The STF also suspended this prohibition16.

However, the most restrictive measures are not always disproportionate. Let's take the
case of the municipality of Niterói (Rio de Janeiro).

9
See art.2, V and VIII of State Decree 9.638/2020 available at: http://diariooficial.abc.go.gov.br//ver-
flip/4140/#/e:4140?find=Decreto%209.638. Accessed on 12/05/2020.
10
Interstate and international transport are essential activities (art. 3, V, of Decree No. 10,282/2020). Obviously,
states and municipalities have competence to define measures to combat Coronavirus, but the total closure of a
state, without any exception and without scientific recommendation, was clearly excessive.
11
According to the World Health Organization, public transportation should not be restricted, but the population
should be made aware of the need to use it for essential situations such as shopping and using public
transportation, for example, outside peak hours. Available at:
https://www.saude.gov.br/noticias/agenciasaude/46540-saude-anuncia-orientacoes-para-evitar-a-disseminacao-
do-coronavirus. Accessed on 10/05/2020
12
BRAZIL. STF. Rcl 40014 MC-GO. Min. Dias Toffoli, judged 15/04/2020
13
According to Article 3 of the Decree, the elderly would only be allowed to move around for health issues and
purchases of essential items. See Municipal Decree No. 21.118/2020 available at:
https://leismunicipais.com.br/a2/sp/s/sao-bernardo-do-campo/decreto/2020/2112/21118/decreto-n-21118-2020-
decreta-restricoes-de-ordem-sanitarias-aos-idosos-que-estejam-no-territorio-do-municipio-e-da-outras-
providencias?q=21118. Accessed on 13/05/2020.
14
According to the latest national household sample survey (PNAD) of the IBGE, in Brazil only 15% of the
elderly live alone. Available at: https://biblioteca.ibge.gov.br/visualizacao/livros/liv98965.pdf. Accessed on
13/05/2020
15
The State of São Paulo only recommended greater care for the elderly, without imposing coercive restrictions
on their freedom of movement. See art. 4 of Decree 64.881/2020. Available at: <
http://dobuscadireta.imprensaoficial.com.br/default.aspx?DataPublicacao=20200323&Caderno=DOE-
I&NumeroPagina=1. > Access on 11/05/2020
16
BRAZIL. STF. Suspension of preliminary order 1.309/2020- SP. Min. Dias Toffoli, tried 01/04/2020
 Based on technical recommendations from Fiocruz17 and UFRJ18, the mayor of Niterói
determined the lockdown19 for the initial period of five days in the city of Rio de Janeiro. The
measure was determined by a law (and not by a decree) and there was care to safeguard the
movement of people for justified essential activities. In addition, the city government had
already adopted a series of social measures to mitigate the economic impacts of the
restrictions20. For all these reasons, we understand that the lockdown in Niterói was
proportional, since the decision was adequate (avoiding contamination and exhaustion of
hospital beds), necessary (scientific recommendation from Fiocruz and UFRJ) and
proportional in the strict sense (the protection of public health overcomes the burden of
temporary limitation to the right to come and go).

Finally, we go to the most disproportionate and inhumane limitation to freedom of

movement: the Brazilian prisons (the true hells of Dante). The National Penitentiary
Department (DEPEN) proposed to the CNPCP21 the isolation of contaminated prisoners in
containers. 22 We repeat, prisoners in containers! In other words, contaminated prisoners or
those in risk groups would be canned in a place without access to adequate ventilation and

17
Faced with the serious situation in Rio de Janeiro, Fiocruz's technical report recommended a lockdown
throughout the state of Rio de Janeiro. According to Fiocruz, the social distancing measures adopted were not
enough to contain the serious carioca situation and the lockdown is extremely necessary. Available at:
https://agencia.fiocruz.br/sites/agencia.fiocruz.br/files/u91/relatorio_distanciamentosocial.pdf. Accessed on
13/05/2020.
18
The recommendation came from the URFJ's team of scientists who are members of the Multidisciplinary
Working Group on OVID-19. See: https://g1.globo.com/rj/rio-de-janeiro/noticia/2020/05/08/ufrj-recomenda-
lockdown-no-estado-em-oficio-enviado-ao-ministerio-publico.ghtml. Accessed on 13/05/2020.
19
Lockdown means total isolation, it is one of the most restrictive measures to freedom of movement during the
pandemic. In the case of Niterói, the movement of people was banned for five days, except for displacement by
labor force, health services and pharmacy, purchase of food and essential items, and going to essential
establishments authorized to operate. See Law 3.495/2020 available at:
https://leismunicipais.com.br/a2/rj/n/niteroi/lei-ordinaria/2020/350/3495/lei-ordinaria-n-3495-2020-estabelece-
medidas-de-contencao-da-disseminacao-do-virus-da-covid-19?q=3495. Accessed on 13/05/2020.
20
According to Fiocruz's recommendation, the lockdown should be adopted in conjunction with social and
economic measures for vulnerable populations. In Niterói, besides the distribution of basic food baskets, the city
government created the program "Empresa Cidadã" (Citizen Company) in which it commits to pay a minimum
wage per employee to avoid mass dismissal. Furthermore, in the technical report, Fiocruz praised the
municipality of Niterói for having progressively adopted restrictive measures since the month of March,
resulting in the lowest number of deaths in Baixada Fluminense. Available at:
https://agencia.fiocruz.br/sites/agencia.fiocruz.br/files/u91/relatorio_distanciamentosocial.pdf. Accessed on
13/05/2020.
21
The National Council for Criminal Penitentiary Policy (CNPCP) is the criminal enforcement body competent
to establish rules on the architecture and construction of penal establishments and sheltered houses, according to
Article 64, item VI, of the Criminal Enforcement Law (Law No. 7,210/1984).
22
The proposal is a container for 10 prisoners, with the following specifications: 12 meters wide, 5 bunk beds, 1
bathroom, small upper air intake space and an air conditioner. In the project, it is noted that the inmates will
sleep in bunk beds and without respecting the minimum distance recommended by WHO. Moreover, DEPEN
itself recognizes that, until then, the use of containers in Brazil was disastrous. However, the director of the
agency has the illusion (or it would be perversity) to suppose that now, in the middle of a pandemic, states will
create "luxury containers" for prisoners. So far, the proposal is to be voted in the CNPCP. Available at:
http://depen.gov.br/DEPEN/noticias-
1/noticias/copy_of_Alternativas_para_vagas_temporarias___COVID_19_ver01.pdf. Accessed on 14/05/2020.
sunlight, without full time running water and without distance between the custodians. This
practice is so disproportionate that it borders on irrationality. It does not go beyond the
requirement of adequacy, since it does not avoid contamination, on the contrary, it increases
the chances of the prisoner dying without air, heat or by Covid-19. There is no point in taking
the prisoner out of the dungeon and putting him in a metal crate.

It is worth noting that the prison in containers already happened in Espírito Santo in
2010 and was rejected by the UN, OAS, CIDH, STF, STJ, CNJ and CNMP, because it
violates national and international human rights law, coisifying the prisoner and abolishing his
dignity. 23 In this context, DEPEN, instead of implementing the protective measures of CNJ's
recommendation n° 62/202024, preferred to deepen the sick prisoners in a Dantesco hell of
more than 50°C (temperatures reached in the containers of Espírito Santo). In this pandemic,
not even Dante Alighieri would have the imagination to create the tenth circle of hell ("the
Container"), in which the justifiable sin would be that the inmate had been contaminated by
the Coronavirus or was part of a risk group.25

In view of these hard cases analyzed, we conclude that scientific technique and
proportionality can reduce the discretion of the public manager in restrictions of freedom of
movement. We understand that the discretion of the manager can be extremely reduced26 and
he can arrive at the "only correct Dworkian answer"27 to the case. Thus, no achisms or
unreasonable impositions. Technique and science in the first place.

23
To have a global view on the subject, we recommend reading the official demonstration promoted by the
DPU, Ombudsman's Office of several states, IBCCRIM, IDDD, OAB/SP and human rights institutions.
Available at: https://www.migalhas.com.br/quentes/325982/conselho-de-politica-criminal-retoma-votacao-sobre-
uso-de-conteineres-para-presos-com-covid-19. Accessed on 14/05/2020.
24
The CNJ expressly recommended the temporary release of prisoners belonging to the risk group (based on
Binding Precedent 56) and, if there is no adequate isolation in the prison, the home detention of prisoners
contaminated or suspected of Covid-19. See: BRAZIL. CNJ. Resolution No. 62/2020. Available at:
https://www.cnj.jus.br/wp-content/uploads/2020/03/62-Recomenda%C3%A7%C3%A3o.pdf. Accessed on
15/05/2020.
25
Dante divides hell into nine circles, one for each sin. The ninth and worst circle of Hell (Lake Cocite) is
destined for traitors. ALIGHIERI, Dante. The Divine Comedy. Trad. Italo Eugenio Mauro. São Paulo: Ed. 34,
4th ed., 2018, p.239-253
26
According to Binenbojm, it is necessary to overcome the classic dichotomy between binding and discretionary
acts in order to understand that every administrative act has different degrees of attachment to juridicity (by
rules, undetermined legal concepts or by principles). García de Enterría, on the other hand, defends that
discretionary acts must mean efficiency, since administrative merit does not represent a protective shield of
authority or one of the "inmunities of power". The manager is bound to the legal system and has the duty to
rationally indicate the best solution directed to the qualitative public interest. See: GARCÍA DE ENTERRÍA,
Eduardo. La lucha contra las inmunidades del poder, Revista do Occidente: Madrid, 1974, passim;
BINENBOJM, Gustavo. A theory of administrative law: fundamental rights, democracy and
constitutionalisation. Rio de Janeiro: Renovar, 3rd ed., 2014, p.240-256
27
We use Dworkin's metaphor of the "only correct answer". It is to say, the manager must have the posture of
seeking the limitations to fundamental rights that are rational, integral and coherent; that consider the Federal
 In a didactic way, based on the German doctrine of fundamental rights 28, we suggest a
step by step for the public manager to decree limitations proportional to the right to come and
go:

a) Does the restriction protect public health and is based on scientific evidence
and technical guidance from a competent health agency?

b) Does the legal system allow this kind of restriction?

b¹) Analysis with emphasis on the Federal Constitution and the specific rules
related to Coronavirus;

b²) Is the restriction proportional? Check if it is efficient to avoid Coronavirus

contamination (adequacy); if there is no other less onerous measure (necessity)
and if the restriction is compensated by public health protection (proportionality in
the strict sense);

b³) The decree or law must contain clear and well determined restrictions, so that
all citizens understand what is prohibited or not.

Sometimes that will be a Herculean task for the manager. However, he should always
seek the most coherent, thorough and rational restrictions to save citizens' lives.

By the way, if it is true that the State can limit, proportionately and technically, our
fundamental right to freedom of movement. It is necessary to analyze the other side of the
coin, that is, would Brazilian society have the fundamental duty to stay at home?

3. THE IMPORTANCE OF FUNDAMENTAL DUTIES DURING THE PANDEMIC

Constitution as the "first chapter" of this "chain novel" that is the Law. See: DWORKIN, Ronald. The empire of
law. São Paulo: Martins Fontes, 2003.
28
PIEROTH, Bodo; SCHLINK, Bernhard. Fundamental Rights. Translation by Antônio Francisco de Sousa
and Antônio Franco. São Paulo: Saraiva, 2012, p.124.
 The fundamental duties29 are the "ugly duckling" of contemporary constitutional law.
It is enough to understand that this is a subject very little studied and debated by doctrine,
especially in comparison with the celebrated fundamental rights.

According to the Lusitanian professor José Casalta Nabais, there are two main reasons
for this. First, it would be a reaction to absolutist and totalitarian periods in which there were
many duties and few rights. Second, it would be a return to a strict liberal view of
fundamental rights, that is, the individual knows only his rights and loses his community
responsibility.30

Between the flight from state discretion and the construction of a freedom without
responsibility, the fact is that the fundamental duties have been hidden or almost forgotten.

It turns out we're not an island. We are political animals (zoom politikon)31 and living
in society denotes a series of duties to citizens. Besides the "I", there is the "other". This
means understanding that my right ends when that of the other begins and that there is no
irresponsible freedom without fundamental duties.

The historical achievement of rights, therefore, cannot imply the ethical and legal
disregard of duties32. Duties are an instrument for the realisation of fundamental33 rights and
this is very evident at this time of the OVID-19 pandemic.

After all, how do we realise the fundamental right to public health if everyone does
not fulfil the fundamental duty to stay at home? How to live in society without respecting the
rights of others? Let us see here, two indispensable duties in order to face this sinister
pandemic effectively.

29
Here we follow the concept of the Faculty of Law of Vitoria, namely: "the fundamental duty is a legal duty,
based on solidarity, which imposes proportionate conduct, punishable or not, with the aim of promoting
fundamental rights". In other words, the duty is an instrument for the implementation of fundamental rights.
Concept built collectively by the State, Constitutional Democracy and Fundamental Rights Research Group, in
the first half of 2013, coordinated by professors Adriano Sant'Ana Pedra and Daury Cesar Fabriz, of the Stricto
Sensu Post-Graduation Program - Master and Doctorate - in Fundamental Rights and Guarantees of the Faculty
of Law of Vitoria (FDV).
30
NABAIS, José Casalta. The hidden face of fundamental rights: the duties and costs of rights. Mackenzie
Law Magazine. Year 3, number 2, p.14-15. Available at:
http://editorarevistas.mackenzie.br/index.php/rmd/article/view/7246/4913 Accessed on 07/05/2020.
31
According to Aristotle, the human being is destined to live in society. The man who thinks he can live alone,
which is enough for himself, must be a beast or a god. ARISTÓTELES. Politics. Translation Torrieri Guimarães.
São Paulo: Ed. Martin Claret, 2017, p.30-32
32
MIRANDA, Jorge. Fundamental Human Rights and Duties. p.14, Available at: http://www.anima-
opet.com.br/pdf/anima2/Jorge_Miranda.pdf. Accessed on 10/05/2020
33
NABAIS, José Casalta. The hidden face of fundamental rights: the duties and costs of rights. Mackenzie
Law Magazine. Year 3, number 2, p.9-10. Available at:
http://editorarevistas.mackenzie.br/index.php/rmd/article/view/7246/4913 Accessed on 07/05/2020
 3.1. THE FUNDAMENTAL DUTY TO STAY AT HOME

Professor Carlos Rátis maintains that, in this pandemic, the duty to protect public
health (art. 196 of CF/88) involves the collective attached duty of "home collection". It is to
say, the fundamental duty of staying at home. This fundamental duty of second dimension
(which limits the right to come and go) should be imposed in a proportional way, based on
technical arguments and aiming to materialize the fundamental right of public health and life
of citizens.34

In this sense, public health is not only a citizen's right and a duty of the State, but it is a
duty of everyone.

The fundamental duty to stay at home is a constitutional duty linked to the protection
of public health (articles 196 to 200 of CF/88) and imposed by pandemic legislation (art.3,
caput and §4 of Law No. 13.979/202035). In the Lusitanian classification of Professor Jorge
Miranda, it would be a right and duty, i.e., it has immediate application and follows directly
from the constitutional text.36

Although it was not a legal duty of immediate application and normative force, staying
at home is a categorical Kantian37imperative, it is a duty by duty, rationally dispense with
legal sanctions or subsequent awards. It is ultimately a minimum duty of civility.

Obviously, not everyone can stay home. Therefore, this duty reaches each citizen in
different degrees (differentiated deverosity) 38 so that it is proportional. Thus, for example,
while a contaminated person must remain in compulsory isolation (art. 2, I, c/c art. 3, I, of

34
MARTINS, Carlos Eduardo Behrmann Rátis. General Duty of Home Collection in Coronavirus Times. In:
Fundamental rights and duties in times of coronavirus. Saulo José Casali Bahia (Org.) São Paulo: IASP
Publishing House, 2020, p.54-55
35
The Coronavirus law (13.979/2020) in the caput of article 3 brings an exemplary list of measures (see the
expression "among others") that can be taken to confront the coronavirus. Paragraph 4, on the other hand, states
that "people should be subject to compliance with the measures provided for". That is, if the State determines, in
a proportional manner and on a scientific basis, that everyone should stay at home, people should submit
themselves.
36
JORGE MIRANDA, Manual of Constitutional Law, Volume IV, Fundamental Rights, 4th Edition, 2008, p.
290.
37
It is a moral duty imposed on all based on universal principles. In other words, it is the rationally correct thing
to do. On the categorical imperative, see: KANT, Immanuel. Critique of Practical Reason. Rio de Janeiro: Ed.
Vozes, 1st ed., 2016.
38
MARTINS, Carlos Eduardo Behrmann Rátis. General Duty of Home Collection in Coronavirus Times. In:
Fundamental rights and duties in times of coronavirus. Saulo José Casali Bahia (Org.) São Paulo: IASP
Publishing House, 2020, p.54-55
Law no. 13,979/2020), a doctor (uncontaminated) has the duty to continue performing his
essential activity and saving lives (art. 9, §1, of CF/88 c/c art. 3, §1, I of Decree no.
10,282/2020).

However, there is a "minimum of deverosity"39 that must be respected, is to say,

everyone, to some extent and degree, should stay at home. Even the doctor, after his
Herculean work, does not have the right to walk freely in the streets and generate
agglomerations (it would be even a contradiction on his part).

The basis of the fundamental duty to stay at home (and of all the fundamental duties)
is solidarity. Let us understand its importance.

3.2. THE FUNDAMENTAL DUTY OF SOLIDARITY

The fundamental duty of mutual solidarity or responsible fraternity is a milestone of

life in society. For everyone to live well, a collective humanitarian conscience is
indispensable, in which the individual can give up his personal right when he conflicts with a
better collective interest.40

This duty of fraternity does not mean defending cheap moralism or metaphysical
entities, but rather realizing the normative force of our Constitution (art. 1, §unico, III c/c art.
3, I, CF/88). This is a fundamental third dimension duty associated, above all, with the legal
protection of the most vulnerable and the primary public interest.41

In the pandemic, state action will not be enough to achieve public health if there is no
solidarity from all citizens. Thus, solidarity is a duty with formal (constitutional provision)
and material (relevant to the social objective of public health) grounds 42.

39
Expression coined by Carlos Rátis, referring to an "existential minimum" of fundamental duties. MARTINS,
Carlos Eduardo Behrmann Rátis. Introduction to the study of fundamental duties. Salvador : JusPodivm,
2009, p. 97/98.
40
LAZARI, Rafael de. The five fundamental duties of the human being. Revista Jurídica Luso-Brasileira,
year 6, 2020, n° 2, pgs.1113-1123. Available at:
https://www.cidp.pt/revistas/rjlb/2020/2/2020_02_1103_1124.pdf. Access on 10/05/2020.
41
HIRSCH, Fábio Periandro de Almeida. The fundamental duty of fraternity and pandemic. In:
Fundamental rights and duties in times of coronavirus. Saulo José Casali Bahia (Org.) São Paulo: IASP
Publishing House, 2020, p.97-98
42
Essa classificação de fundamentalidade formal e material pode ser encontrada no seguinte trabalho: PEDRA,
Adriano Sant’Ana Pedra. Human Rights, Rule of Law and the Contemporary Social Challenges in Complex
Societies: Proceedings of the XXVI World Congress of Philosophy of Law and Social Philosophy of the
Internationale Vereinigunf für Rechts- und Sozialphilosophie. Belo Horizonte: Initia Via, 2015, P.1135-1136.
 In this sense, public health comes first and must not give way to irresponsible
individualism that despises the lives of others. Even the post-truth can legitimize selfish
speeches such as: "I am not obliged to anything, because I am totally free", "I have my rights,
I go to the street, I don't believe in science and I don't believe in universities either".

Living in a democracy does not mean being irresponsible. According to Boaventura de

Sousa Santos, solidarity and cooperation strengthen the democratic system. 43

Recognizing the existence and importance of the other is a basic requirement of

civilization. Freedom and solidarity are complementary, not exclusionary. It is not acceptable
that the selfishness of some forces doctors to make the tragic choices of deciding between
who will die or who will live, for lack of beds or breathers.

Is it better to kill the old or the young? We can't let the right come to this utilitarianism
without a brake. That is why we must "take our fundamental duties seriously". As Ronald
Dworkin rightly says, the law is a matter of principle, 44a life is equal to a life, and we cannot
give up on that.

Selfishness leads us to an empty life and often leads us to a "living death". The book
"The death of Ivan Ilitch", a work of art by Lev Tolstoy, tells the sad story of Ivan, a judge
who lived a selfish life based on power and material goods. At his professional peak, Ivan was
afflicted with a serious illness that made him agonize to death. Before dying, he realized that
"he did not live as he should have"45 (our griffon).

Sometimes worse than dying in fact is "dying in life". To live a meaningless life, based
only on the "I" and the "TER", without thinking about the "OTHER" and the "BEING". In
this pandemic, let us not be an "Ivan". Let us be people of solidarity, not lonely. Let us be
responsible citizens with well-balanced rights and duties.

The legal duties of staying at home and of solidarity, therefore, are essential if we are
to face this pandemic.

Disponível em:
https://www.academia.edu/36423035/PEDRA_AS._Solidariedade_e_deveres_fundamentais_da_pessoa_humana
. Acesso em 11/05/2020
43
SANTOS, Boaventura de Sousa Santos. The cruel pedadogy of the virus. São Paulo: Boitempo editorial,
2020, ebook, p.48.
44
DWORKIN, Ronald. A matter of principle. Translation Luis Carlos Borges. São Paulo: Martins Fontes,
2000.
45
TOLSTÓI, Lev. The death of Ivan Ilitch. Translation Boris Schnaiderman. São Paulo: publisher 34, 2009,
p.68
 4. CONCLUSION

The limitations and duties related to freedom of movement demonstrate that

fundamental rights and duties must live together harmoniously in a Democratic State under
the rule of law.
With this harmonious purpose, Constitutional Law must be renewed to face the post-
Pandemic reality that is to come. We understand that the key word is balance, that is, the
middle ground between excess and lack, as Aristotle already warned. 46
A post-Pandemic constitutional right must seek, above all, this Aristotelian balance
between fundamental rights and duties. It is essential to build a constitutionalism that does not
blindly defend the "Age of Rights" or the "Age of Duties", but that seeks to achieve a
responsible citizenship (a balance between the two extremes).
A responsible citizen is one who understands and respects his or her fundamental
rights and duties and who understands the importance of the "I" and the "other" for his or her
social existence. We hope that this Post-Pandemic Constitutional Law will at least be able to
collaborate with this new model of citizen and social contract.
I hope that this terrible pandemic will pass soon and that learning will remain for a
more sympathetic humanity and a legacy for this new constitutional right.

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