take refuge in the dogmatic comfort of “contractual freedom.” It is precisely here that decisionism reveals its most perverse face. Judicial decisionism, by transforming the decision into an act of the judge’s will, opens the door for social prejudices to be disguised as legal technique. When a magistrate invokes “private autonomy” to legitimise a restaurant’s refusal to serve a particular customer, they are not applying the law, but choosing a side in the tension between freedom and equality. Worse still, they are choosing without admitting that they are choosing, hiding behind a supposed technical neutrality. As Lenio Streck warns, decisionism is the antithesis of constitutional integrity, as it replaces principled consistency with arbitrariness disguised as prudence.27 Streck’s criticism of arbitrary weighing finds a paradigmatic case in the restaurant. Not infrequently, judicial decisions invoke the “weighing” of fundamental rights – on the one hand, the equality of the customer; on the other, the freedom of the entrepreneur – as if both were on the same level of value. But this symmetry is false. When it comes to discrimination in access to public spaces, there is no room for weighing: arbitrary exclusion is always unconstitutional. Weighing, in this context, becomes an alibi for arbitrariness, allowing the judge to project their own conceptions of what would be “reasonable” to exclude. Streck is right to denounce that, under the cloak of weighing, the discretion that the Constitution sought to eliminate is often hidden.28 This is where Hans-Georg Gadamer‘s philosophical hermeneutics offers a fruitful alternative. The notion of fusion of horizons (Horizontverschmelzung) sheds light on the problem: understanding the right of access to the restaurant requires the interpreter to engage with the constitutional tradition of equality, but also with the present historical horizon, marked by subtle forms of exclusion.29 The restaurant is not just a commercial establishment – it is a space where the tension between the private and the public, between hospitality and hostility, is actualised. Hospitality, a hermeneutic category inspired here by Gadamer, emerges as an interpretative principle: the act of welcoming the other to the table is a fundamental gesture of recognition.30 To deny this gesture is to deny 27 STRECK, Lenio Luiz. Jurisdição constitucional e hermenêutica: uma nova crítica do direito. 12. ed. São Paulo: Saraiva, 2021. p. 101-108 28 STRECK, Lenio Luiz. Verdade e consenso: constituição, hermenêutica e teorias discursivas. 6. ed. São Paulo: Saraiva, 2018. p. 213-220. 29 GADAMER, Hans-Georg. Verdade e método I. 15. ed. Petrópolis: Vozes, 2015. p. 305-312. 30 The reflection on hospitality is inspired by Gadamer‘s discussion of hermeneutic openness to the other 593 FREEDOM OF ACCESS TO RESTAURANTS
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