constitutional jurisprudence, starting from the 1950s, Bomhoff writes that according to juris-
prudence “[t]he written Constitution, on the system-of-values view, might be incomplete and
the catalogue of rights haphazard, but . . . the value order behind the Constitution could still
tematization, features that are absent and even antithetical to Israeli constitutional adjudi-
cation. The German version of the Platonic conception of the constitution therefore holds
within it the tension that is often attributed to German law – between highly abstract and
idealized jurisprudence, and highly formalized and technical one: see Jacco Bomhoff, “Lüth’s
50th Anniversary: Some Comparative Observations on the German Foundations of Judicial
versions of the Platonic conception, however, does not mean that they do not share a similar
conception. I have suggested elsewhere though that the absence of the text as a limitation on
judicial discretion is balanced in Germany by the formalism that characterizes it, but that such
balance is absent in the Israeli jurisprudence: see Iddo Porat, “Sixty Years of Balancing: On the
Transformation from Instrumental to Substantive Balancing in Israeli Law” (2010) 10 Law and
290
Iddo Porat
the structure of the text and to the political compromise behind it, is therefore
justified since this political compromise is only behind the human and flawed
“subjective rights” and does not affect the validity of the “objective rights” that
are derived directly from general principles of personhood and dignity.
The Platonic conception helps explain several key aspects of the relation-
ship to the text in Israeli constitutionalism, as well as in other constitutional
systems that share this model. First this conception helps explain how the
Court completely ignores the original intent behind the Basic Laws, and why
originalism as a constitutional theory has absolutely no place in Israeli con-
stitutionalism. According to a Platonic conception of the text the will of the
drafters is irrelevant. The will of the drafters of the text cannot affect the truth
of the Idea of the right or of the constitution, of which the text is an imperfect
manifestation. Hence, for Barak, the obvious and undisputed will of the draft-
ers of the Basic Law: Human Dignity and Liberty not to include certain rights
in the text was inconsequential for its interpretation.
64
Equality, freedom of
speech, and freedom of religion “truly” inhere in the right to human dignity,
and in the more general Idea of a constitution, whether the drafters of the
Basic Law willed this or not.
Second, this account also explains why Barak chose the right to human
dignity to carry on its shoulders the weight of the entire bill of rights. This is
the same right that serves as the Archimedean point for Weinrib, is the center
of German constitutionalism, and can be seen as the true Form of all the
different manifestations of the specific rights. Third, the Platonic conception
can explain why Barak and others view their doctrines as “interpretation” of
the text, although not being constrained by the human will behind it. This
point can be made clear if we compare the Platonic conception with the idea
of Natural Law.
There is much similarity between the Platonic conception of constitutional
law and constitutional rights, and the idea of Natural Law and Natural Rights.
There is also of course a historic connection between the two, as the Catholic
Natural Law theory is a derivation of Greek Platonic and Aristotelian philoso-
phy. Like the Platonic Ideas, Natural Law is unchanging, pure, and unaffected
by human imperfection. Like the Ideas Natural Law is the “real” thing, and
holds priority over the human and imperfect Positive Law.
65
However, there
seems to be the following difference: unlike the relationship between Form
and Substance there is no necessary connection or similarity between Natural
64
See notes 37–41 and accompanying text.
65
See Natural Law Tradition in Ethics, Stanford Encyclopedia of Philosophy,
https://plato
.stanford.edu/entries/natural-law-ethics/
.
