-Chiara Valentini, Associate Professor of Philosophy of Law, University of Bologna
This is the ninth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Not-so-bad Laws: A Problem for Judicial Review
On 21 April 2026, the Court of Justice of the European Union declared (Case C-769/22 Commission v. Hungary) the infringement of several Union provisions, including Art.2 TEU, by a 2021 Hungarian law presented as taking action against paedophile offenders, but prohibiting or restricting “access to content – including audiovisual material – portraying or promoting gender identities that differ from the sex assigned at birth, sex reassignment, or homosexuality”. What is distinctive of the CJEU decision is not only the standalone breach of Art. 2, but the argumentative path the Court discloses: rather than the law’s effects, it targets a flaw in the “view” grounding the law, capturing something important about judicial review in the face of legislative manipulation.
The 2021 Hungarian law is one example: a not-so-bad law, one that maintains a façade of reasonableness and legality, yet is designed to conflict with the values underpinning liberal constitutional democracies, contributing to their erosion, and to a broader process of democratic backsliding. Although widely analyzed, this process remains contested as to its nature, causes, and dynamics. The dominant tendency has been to reduce it to a gradual erosion of the rule-of-law machinery: the dismantling of judicial independence, the weakening of checks and balances, and the subversion of formal legality. But democratic backsliding goes beyond this. More fundamentally, and cutting across those symptomatic instances, it is a systemic erosion of the constitutive core of democratic constitutionalism: the justified exercise of power. This should not be understood as the mere offering of reasons, which illiberal regimes too can provide, but as a public exchange of reasons between citizens and institutions, one that makes the exercise of power acceptable, contestable and accountable, as constitutionalism demands for both democracy and the rule of law.
How, then, should constitutionalism respond to this erosion? Caruso and Stambulski, introducing this symposium, frame militant constitutionalism as a response: a set of “judicially driven forms of constitutional action through which courts actively constrain anti-democratic projects”, shifting the center of gravity of democratic defense from institutional politics to the courtroom. Focusing on this shift, I want to draw attention to what courts can do against not-so-bad laws, which erode democracy through the abuse of legality.
Courts, here, have an important instrument: proportionality analysis in the judicial review of legislation. Understood in its full sense, proportionality is not only a tool for assessing laws’ impact on rights, but a framework for thoroughly exposing and testing the justification of legislative action. Used properly, that is; otherwise it has a blind spot that manipulative legislatures can exploit.
Proportionality’s Blind Spot
Proportionality analysis in judicial review is structured as a multi-stage test. It requires courts to examine, first, the legitimacy of a law’s aim; second, the suitability of the legislative means adopted to realise that aim; third, the necessity of those means; fourth, proportionality stricto sensu, through a balancing test weighing the interests fulfilled by those means against the interests that must be sacrificed. In both, the theory and practice of proportionality, the focus of the analysis has shifted decisively toward this last stage. Courts tend to accept legislative aims at a high level of abstraction and then weigh the burdens imposed against the benefits claimed. Legitimacy is thus assessed mostly by outcomes, while the law’s aim, suitability and necessity remain in the background.
This creates a blind spot. When the problem lies not in the relationship between the legislative means adopted and the outcomes produced, but upstream, in the relationship between the declared aim and the means chosen, an outcome-focused review misses what is normatively most troubling. Not-so-bad laws exploit this dynamic precisely. They declare a legitimate aim, frame the resulting harm as a tolerable side effect, and reach the balancing test without being scrutinised at the aim and suitability stages. They can thus survive it, since balancing takes the declared aim for granted and weighs only the costs and benefits of pursuing it. The problem is that when a law is designed to serve ends that diverge from its declared aim, this aim becomes a “smokescreen” shielding the actual costs and benefits from balancing.
Consider a law enacted to ensure media pluralism, yet designed with thresholds tailored to exclude a single critical broadcaster. If the declared aim is taken as given, balancing weighs only the costs and benefits of pursuing media pluralism — a limited regulatory burden against greater media diversity — and the law passes. But the purpose embedded in the law’s design, which steers it toward restricting freedom of expression, is not assessed, nor are its real costs: the suppression of dissent and the harm to public debate.
Manipulations of this kind allow illiberal majorities to “rule by law“: a declared aim lends a law the appearance of legality, while its design serves illiberal purposes. Against this mode of power, only a judicial review strictly scrutinizing the relationship between a law’s aim and its design can reach the manipulation at its source. In the forum of adjudication, militant constitutionalism requires holding facially compliant laws to the justification they claim to provide.
Why the Aim Matters
The use of proportionality analysis in judicial review applies a broader framework of practical reasoning. This framework structures deliberation upon a course of action to identify and assess the aspects of it —aim, means, outcomes — that bear on making a justifiable choice, in light of the principles relevant in the given context. In an institutional setting, this reasoning can apply in two ways. Ex ante, it can shape an institution’s deliberation in choosing a course of action, requiring it to unfold by assessing those aspects one after the other. Ex post, it provides a scheme for reconstructing how that deliberation unfolded, and testing whether it followed the sequence of assessments required. In both cases proportionality analysis gives institutional reasoning the structure demanded by the “culture of justification” that runs across liberal constitutional democracies, binding all institutional actors: what they do must be grounded in reasoned decisions, publicly accessible and open to scrutiny. As such, proportionality has acquired a central role in shaping how legislatures, courts, and administrative officials reason and decide. Especially in judicial review, it is the dominant tool to reconstruct and scrutinize, ex post, the deliberative path to a legislative measure and its justificatory grounds: from the aim through the means to the outcomes.
This is after all the “lost meaning” of proportionality reasoning, emerging from its role in the doctrine of double effect. This doctrine concerns reasoning about actions that produce both a good and a harm, and a law assessed for proportionality is one of them: it pursues the fulfilment of an interest while sacrificing another. The doctrine gives prominence to the distinction between a harm that is merely foreseen and a harm that is intended, or used as a means to an end, allowing only the former and requiring that the good effects be sufficiently desirable to compensate for allowing the bad ones. The chain of reasoning ends with a balancing of effects, but begins with the assessment of the aim and its relation to the means chosen and the harm they produce. This assessment is not a merely preliminary step, to be settled and left behind, but the starting point from which the whole reasoning unfolds and which pervades it. Without it, the chain does not hold: one cannot tell whether a harm is a side effect to be balanced or part of the means through which a different end is pursued. Courts should therefore assess the declared aim first, and then whether the law’s design can be justified by reference to it. When it is not, there is a “justificatory breakdown”: a disconnection between the reason invoked for the law and the design itself.
Uncovering this disconnection through judicial review is not a matter of probing the legislature’s subjective intent, nor of having courts find the right reasons in its place. It requires them to assess, ex post and at a critical level, whether a law’s design carries through the reasons offered to support it and whether those reasons align with the principles that govern legislative rule-making in the given context. Here an objection may arise: that proportionality leads to juristocracy, enabling courts to determine what is proportionate and what is not, displacing the legislature and the citizens. But the objection misconceives the exercise. Courts do not supply their own reasoning in place of the legislature’s; they test the legislature’s reasoning, holding legislative power to the justification it owes to citizens.
This exercise is particularly valuable in contexts of democratic backsliding, since it allows courts to go beyond “a prima facie plausible relationship” between legislative means and ends, to reach the principles that ground the legislative design and the reasoning that ultimately holds it together. Here, proportionality becomes a resource for militant constitutionalism. If what erodes in democratic backsliding is the justified exercise of power — the integrity of the reasoning on which it rests — a court scrutinizing the justificatory chain of a law defends democracy at the point where it fails.
Reading the Hungarian Law
A law aimed at protecting children has no principled reason to single out LGBTQI+ content while leaving comparable heterosexual content untouched. When the declared aim of child protection is tested ex post, it cannot account for the specific design choices the legislature made. The CJEU’s reasoning on the 2021 Hungarian law brings this justificatory breakdown into view and shifts the focus from the declared aim to the aim the law actually realises, in order to assess whether the latter is legitimate. To this end, the Court does not perform a balancing test, but it does not set proportionality aside: applying its opening stages, it tests the declared aim and the suitability and necessity of the law’s design in relation to it.
The law, the Court finds, draws a distinction “directly based on sex and sexual orientation,” singling out such content “to the exclusion of programmes” portraying cisgender and heterosexual persons (para 135); yet minors “may be adequately protected … without there being direct discrimination” of that kind (para 146). The design, in other words, cannot be accounted for by the declared aim. And because the provisions “undermine the essence” of the prohibition of discrimination (para 141), which “cannot be justified under any circumstances” (para 142), the review never arrives at balancing: at this point, there is nothing left to balance.
In these terms, the Court reads in the amending law “a coordinated series of discriminatory measures reflecting the Hungarian legislature’s view that any content promoting or portraying deviation from the self-identity corresponding to the sex assigned at birth, gender reassignment, or homosexuality is detrimental to the physical, mental and moral development of minors” (para 553). This “view” is embedded in the law’s design, resting on the unstated premise “that any portrayal or promotion of deviation … is such as to be detrimental to the best interests of the child,” which “reveals a preference for certain identities and sexual orientations to the detriment of others” (para 136), a premise incompatible with the legally binding values enshrined in Article 2 TEU (paras 555–556).
The Court’s scrutiny, thus, pauses at the law’s aim and goes even further, examining the measures systemically, rather than as fragmented provisions. The 2021 law amended several separate statutes — on child protection, commercial advertising, media services, public education, and the criminal-records system — inserting in each the same restriction on content “promoting or portraying” deviation from the sex assigned at birth. Here the Court reads the discriminatory aim not from any single provision but from their convergence: the same prohibition placed in concert into different bodies of law, under a statute whose title frames the whole as action against paedophilia. It is the pattern of coordinated measures that renders the law’s aim visible.
Militant Judicial Review and Legislative Deliberation
The CJEU’s judgment shows what proportionality analysis looks like without its blind spot: it detects a justificatory failure — the declared aim cannot justify the law’s design — that signals a flaw in legislative deliberation. Such a flaw is, first, procedural, affecting the legislative reasoning from the declared aim to the adopted design. Second, it can be substantive, if this design not only fails to fit the declared aim but embeds a different aim that directs it towards illegitimate ends. In this case, what matters is not hidden intent, but the intentional structure of the law. The Hungarian law exhibits both. Child protection does not, on its own, justify the law’s design: it gives no reason to single out LGBTQI+ content while leaving comparable heterosexual content untouched. Such design becomes intelligible only in light of the unstated premise identified above: the law’s operative aim. Reading it from the design is what exposes, beneath the procedural breakdown, a substantive incompatibility with Article 2.
Detecting such failures is not merely a technical refinement of proportionality analysis. It is a way to hold legislatures accountable: treating the aim of legislation as something that can be demanded and tested, to intervene when legislative reasoning breaks down and a justificatory void opens up. Of course, this is not sufficient on its own. Judicial intervention works case by case. It can prove decisive, breaking a chain of legislative manipulation and establishing the legislature’s accountability for it. But this accountability must be taken up by the other articulations of a democracy, and by social mobilization, to do what captured legislatures will not, or cannot, do. No single response is enough since each, in isolation, can be neutralized or absorbed. Democratic backsliding is a systemic process, and the response of constitutionalism must be systemic as well: by attending to the deliberative quality of public power, it must restore the justificatory relationship between institutions and citizens. Here, judicial review can play a central role, whether we call it “militant” or simply judicial review at its best.
Suggested citation: Chiara Valentini, Symposium on Militant Constitutionalism Part IX: Militant Judicial Review? Commission v. Hungary, Proportionality’s Blind Spot and the Problem of Not-So-Bad Laws, Int’l J. Const. L. Blog, June 18, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-ix-militant-judicial-review-commission-v-hungary-proportionalitys-blind-spot-and-the-problem-of-not-so-bad-laws/