Rosalind Dixon and Adrienne Stone (eds.), The Invisible Constitution in Comparative Perspective (Cambridge University Press; 2017).
25 Pages Posted: 19 Nov 2016 Last revised: 19 Jul 2017
Date Written: November 10, 2016
Does Israel have a constitution? I open the first class of my constitutional law course each year with this simple question and there is always a long pause and then conflicting answers of Yes and No. My own answer is the following: Israel went from parliamentarism to constitutionalism without a constitution in between. Israel today does have a constitutional system, including a strong form of judicial review and the protection of a full set of constitutional rights, but it does not have a constitutional text. This is not entirely accurate, as Israel has 13 Basic Laws that were drafted intermittently between 1958 and the present. However they are no more than an incoherent beginning of a constitution and there was no political will behind their enactment to make them a constitution (at least not yet). The institution that is responsible for bridging the gap between the textual reality and the actual reality is the Supreme Court of Israel that has done so in a set of groundbreaking decisions spanning from 1995 until today. This required extensive interpretative moves, as not only was the constitution completed judicially, in a sense it was created judicially.
In addition it required a legal and normative theory that would justify this interpretative move. I call this theory the "Platonic" conception of the constitutional text. According to this conception the constitutional text is only an approximation – an imperfect shadow – of the "ideal" constitution. Judges should strive to bridge the gap between the written and the ideal constitution, and owe their allegiance primarily to the latter rather than to the former. In this article I present this theory, discuss its ties with the Post WWII European conception of constitutional rights, and provide an initial critique of it.
Keywords: Constitutional Law, Israel, Basic Laws, Invisible Constitution, Judicial Review, Constitutional Interpretation, Plato, Judicial Activism
JEL Classification: K1
Suggested Citation: Suggested Citation
Porat, Iddo, The Platonic Conception of the Israeli Constitution (November 10, 2016). Rosalind Dixon and Adrienne Stone (eds.), The Invisible Constitution in Comparative Perspective (Cambridge University Press; 2017). . Available at SSRN: https://ssrn.com/abstract=2867499