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Iddo Porat
them – which it did. Then, it needed to complete the very partial list of written
constitutional rights in these Basic Laws into a full list of rights – and this it
also did. Finally, it had to set up rules of “maintenance” and of day to day oper-
ation of these Basic Laws and make the entire apparatus cohere – since the
Basic Laws were never intended to function as a constitution in their current
form, and therefore were not adjusted to do that. To an extent, it also did this.
In addition the Court needed to rely on a legal and normative theory that
would justify this radical interpretative move. The doctrinal legal theory was
provided by the then Chief Justice, Aharon Barak, in his legal decisions and
extra-legal scholarly writings. But behind it is also a deeper theory about the
relationship between the constitution and its text, which is not made explicit in
the reasoning. I call this theory the “Platonic” conception of the constitutional
text. According to this conception, which, I posit, lies behind the judicial pro-
nouncements, the constitutional text is only an approximation – an imperfect
shadow – of the “ideal” constitution, which is universal, perfect, unchanging,
and also, importantly, accessible to judges regardless of the text. 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.
This chapter has two main aims: the first is descriptive. I aim to give a con-
densed, accessible, and readable account of the judicial move in the 1990s that
is sometimes referred to as the Israeli Constitutional Revolution, emphasizing
what I take to be its main feature – the judicial bridging of the gap between
the partial and embryonic constitutional text, and a the ideal of a full and
functioning constitution. Section
9.1
will give the historical background to
the move, dividing it between two periods, 1948–92, and 1992–95, and Section
9.2
will concentrate on the move itself and on the doctrines developed by the
Israeli Supreme Court as part of this move. My second aim is theoretical and
conceptual. I aim to contribute in explicating the conceptual and interpre-
tative assumptions implied by this interpretative move of bridging the gap
between text and ideal. This will be done in Section
9.3
, titled the Platonic
Conception of the Constitution. Section
9.4
will describe some implications
of the Platonic conception, discuss how its proponents justify it, and address
possible objections to my account.
Two preliminary remarks are in order – the first, normative. My own view
is that the judicial move from text to ideal was problematic both in terms of its
practical effects and in terms of its democratic legitimacy. I similarly believe
that the Platonic conception of the constitution, as a recipe for constitutional
interpretation, faces serious implementation problems, and, in particular, a
serious democratic legitimacy problem. However, my main aim in this article
is descriptive and conceptual rather than normative – it is to show that this
The Platonic Conception of the Israeli Constitution
271
conception indeed lies behind the Israeli constitutional revolution, and to
explicate its main features, and possible manifestation in other countries as
well. Therefore, the description and the conceptual analysis should be con-
genial also to those with a more favorable view of the move and of the Platonic
conception.
The second remark is comparative. Neither the idea of extensive and
far-reaching interpretative deviations from the constitutional text nor the
Platonic conception of the constitution is unique to Israel. As the other chap-
ters in this book attest, comparative constitutionalism provides ample exam-
ples of filling-in the text of the constitution with “unwritten” or “invisible”
law, sometimes completely altering or contradicting the textual meaning of
the document. In addition what I would term the Platonic conception lies
behind much of the attitudes toward the text in European – in particular
German – constitutional adjudication, although with some important differ-
ences from the Israeli case.
7
It can also be traced in the constitutional adju-
dication of countries that adopted a European-like constitutional framework,
such as Canada,
8
and even, by some accounts, of American constitutional
law.
9
However, I believe that the Israeli case presents a more radical endeavor.
This is so, since, included in the unwritten part of the Israeli constitution is
also its own existence. In other words, whereas other judiciaries may be as rad-
ical in their constitutional interpretation as the Israeli one, at least they have
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