power of choice, as it collides with the intangible core of equality. It is at this point that constitutional hermeneutics, inspired by Lenio Streck’s critique of decisionism and Gadamer’s lesson that understanding always takes place from historical horizons, imposes itself as a methodological guide: interpretation must be consistent with the integrity of the legal system and the historicity of fundamental rights. In Brazil, the Consumer Protection Code (Law No. 8,078/1990) established that services placed on the market must comply with standards of safety, quality, and non-discrimination. Brazilian case law has repeatedly recognised the liability of restaurants and nightclubs that, explicitly or covertly, have barred customers on grounds related to skin colour, sexual orientation or social status. In one case, the TJDFT condemned a restaurant that barred a customer without plausible justification.8 In another, a pub was ordered to compensate a consumer who was prevented from entering.9 The STJ, in turn, established the understanding that moral damages in these cases are presumed, dispensing with the need for proof of actual harm.10 In these cases, moral damages are not mere individual compensation: they are an instrument for affirming human dignity, a fundamental principle of Article 1, III, of the 1988 Constitution. The Federal Supreme Court has reaffirmed on several occasions that the horizontal effectiveness of fundamental rights prevents private individuals, when engaging in activities open to the public, from exercising practices of exclusion that are incompatible with the constitutional order.11 The consumer space, here, is understood as an extension of the democratic public space. France provides another telling example. The Code de la Consommation expressly regulates the duty of equality in access to goods and services. Even more incisive is the Code pénal, whose Article 225-2 classifies discrimination 8 COURT OF JUSTICE OF THE FEDERAL DISTRICT AND TERRITORIES. Establishment will have to compensate customer who was barred from entering. TJDFT News, 17 July 2015. Available at: https://www.tjdft. jus.br/institucional/imprensa/noticias/2015/julho/estabelecimento-tera-que-indenizar-cliente-que-foi-barradona-entrada. Accessed on: 5 Sept. 2025. 9 COURT OF JUSTICE OF THE FEDERAL DISTRICT AND TERRITORIES. Pub will have to compensate customer prevented from entering establishment. TJDFT News, 18 February 2021. Available at: https:// www.tjdft.jus.br/institucional/imprensa/noticias/2021/fevereiro/pub-tera-que-indenizar-cliente-impedido-deentrar-em-estabelecimento. Accessed on: 5 Sept. 2025. 10 SUPERIOR COURT OF JUSTICE. In re ipsa – the most recent understandings of the STJ on the configuration of presumed damage. STJ News, 11 Sept. 2022. Available at: https://www.stj.jus.br/sites/portalp/ Paginas/Comunicacao/Noticias/2022/11092022-In-re-ipsa-os-entendimentos-mais-recentes-do-STJ-sobre-aconfiguracao-do-dano-presumido.aspx. Accessed on: 5 September 2025. 11 SUPREME FEDERAL COURT (Brazil). ADI 4277/DF. Reporting Justice Ayres Britto, Full Court, 5 May 2011, DJe 14 Oct. 2011. Available at: https://redir.stf.jus.br/paginadorpub/paginador. jsp?docTP=TP&docID=6984691. Accessed on: 5 September 2025. 588 RUI AURÉLIO DE LACERDA BADARÓ
RkJQdWJsaXNoZXIy MTE4NzM5Nw==