The Invisible Constitution in Comparative Perspective

Migdal Cooperative Village PD 49(4) 221, 349 (1995) (henceforth “Mizrahi”). English translation 

from the Versa website: Versa, Opinions of the Supreme Court of Israel 

http://versa.cardozo.yu.edu/

.

4 

Unlike the Constitute website, Wikipedia entries maintain that Israel has an “uncodified constitu-

tion”: 

https://en.wikipedia.org/wiki/Basic_Laws_of_Israel

, downloaded April 12, 2016 or “unwritten 

constitution” 

https://en.wikipedia.org/wiki/Constitution_of_Israel

, downloaded April 12, 2016.

9

The Platonic Conception of the Israeli Constitution

Iddo Porat*

* 

Versions of this article were presented at the San Diego Law School Faculty Colloquium, the 

CLB Law Faculty Colloquium, Bar Ilan University’s conference on the Constitution in Trial 

Courts, and the University of Sau Paulo Constitutional Law and Political Theory  Colloquium. 

I would like to thank the participants of these conferences for helpful suggestions and com-

ments, and especially Larry Alexander, Moshe Cohen-Eliya, Yossi Dahan, Virgilio da Silva, 

Rosalind Dixon, Matthias Klatt, Conrado Mendes, Steve Smith, Larry Solum, Gila Stopler, 

and the editors of this book, Rosalind Dixon and Adrienne Stone.

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The Platonic Conception of the Israeli Constitution 

269

I open the first class of my constitutional law course each year with a simple 

question – does Israel have a constitution? There is always a long pause and 

then conflicting answers of yes and no.

5

The purpose of this chapter is to document and explain how this situation 

came about and discuss what it means for the relationship between text and 

constitutionalism. My own answer to the question I pose to my students is the 

following: Israel went from parliamentarism to constitutionalism without a con-

stitution in-between. Today, therefore, Israel does have a constitutional system, 

including a strong form of judicial review and the protection of a full set of con-

stitutional rights, but it does not have a constitutional text. This is not entirely 

accurate, but it is not very far from the truth. Israel has a fragmented and partial 

draft of a constitution – its thirteen Basic Laws that were drafted intermittently 

between 1958 and the present.

6

 However, despite the fact that, as a text, these 

thirteen Basic Laws are no more than an incoherent beginning of a constitu-

tion, and despite the fact that there was no political will behind their enactment 

to make them a constitution (at least not yet), they operate in effect as if they 

were a full-fledged constitution. The institution that is responsible for bridging 

this gap and in effect created the Israeli Constitution is not a political organ but 

the Supreme Court of Israel that has done so in a set of decisions spanning from 

1995 until today. One may use the following analogy: the Basic Laws of Israel, 

which were a political creation, were only a potential for a constitution – an 

embryo constitution – but the processes of gestation and delivery were done 

entirely outside of the political sphere, by the Supreme Court of Israel.

What this means in terms of the judicial relationship with the text is quite  

far reaching. This is so, since in order to bridge this gap between embryonic text 

and an actual functioning constitution, the Supreme Court of Israel needed 

to do some radical interpretative adjustments to the text of the Basic Laws.  

It needed, first, to read into these Basic Laws the proposition that they are 

indeed a constitution, in the sense that they are superior to regular legislation 

and that the Supreme Court has the authority to strike down laws that conflict 

5 

A Israeli colleague reading a draft of this paper tried to correct me on this point arguing that 

while law students do not know that Israel has a constitution when they begin their constitu-

tional law course, by the time they reach its end, they do. This, to my mind, only strengthens 

my point regarding the uncertainty around the Israeli constitution.

6 

They are Basic Laws: The Knesset (1958), Israel Lands (1960), The President of the State 

(1964), The Government (1968, reenacted in 2001), The State Economy (1975), The Army 

(1976), Jerusalem, The Capital of Israel (1980), The Judiciary (1984), The State Comptroller 

(1988), Freedom of Occupation (1992, reenacted 1994), Human Dignity and Liberty (1992), 

Referendum (2014), The State Budget for the Years 2017 and 2018 (Special Provisions) (Tem-

porary Provision) (2017). See the Knesset website: “Basic Laws” 

www.knesset.gov.il/description/

eng/eng_mimshal_yesod.htm

.

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270