The Invisible Constitution in Comparative Perspective

9.4.1.  Constitutionalism without a Text

Do we need therefore a text at all? Taken to its logical extreme it would appear 

that according to the Platonic conception text is not required at all. We could 

have constitutionalism without a constitution. Indeed, text could even be coun-

terproductive to constitutional adjudication, as it might drive judges away from 

the true Idea of the constitution or of constitutional rights.

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 In one of his most 

striking opinions, Justice Barak seems to arrive at this same conclusion. This 

occurs in an opinion from 1989, before the two Basic Laws of 1992 and the consti-

tutional revolution. In the Laor case Barak writes the following as an obiter dicta:

In principle and theoretically, there exists the possibility that a court in a 

democratic society would declare void a law that violates the basic princi-

ples of the system, even if these basic principles are not enshrined in an 

entrenched constitution or Basic Law. There is nothing axiomatic in the 

approach that a law is not invalidated because of its content.

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A constitutional text, according to Barak, is therefore not required for the 

understanding of the principles according to which a law can be invalidated 

(what Barak terms the “basic principles of the society” and could be viewed as a 

placeholder for what I called the Idea of a constitution), nor for the legitimacy 

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HCJ 4908/10 Bar-On v. Knesset (11.1.2011 not published yet).

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See generally Yaniv Rosnai, Unconstitutional Constitutional Amendments (Oxford University 

Press 2017).

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For a similar claim made by way of critique of American constitutional law, see Foley, Supra 

note 9, 152: “I shall suggest an account of constitutional interpretation in which the actual 

language of the Constitution serves as little more than a potential obstacle to judicial decisions 

reached independently by considerations of pure political philosophy. (By ‘pure political phi-

losophy,’ I mean the judge’s own normative beliefs about what the Constitution ideally ought 

to say.)”

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HCJ 14/86 Laor v. Films and Plays Censorship Board 41(1) PD 421 (1989), [30] (Justice Barak).

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The Platonic Conception of the Israeli Constitution 

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for invalidating a law. According to Barak, there is “nothing axiomatic” in the 

view that you need a constitution for a court to strike down a law. Justice Barak 

could, in principle, have done everything he did when using the Basic Laws 

even without them.

If there is no purpose for the text at all, according to the Platonic scheme, 

how is it that Barak nevertheless did not embark on the constitutional revolu-

tion project without some anchoring in a constitutional or quasi-constitutional  

text – i.e., the two 1992 Basic Laws? Even for Barak and for the Platonic 

view, there seems therefore to be some importance to the constitutional text, 

though it is purely instrumental. The text is required to provide legitimacy to 

the Court in the eyes of the public. It is required in order to achieve the coop-

eration of the political branches with the Court and its rulings. There may be 

other instrumental reasons, such as coordination, or education, or reducing 

litigation costs, or litigation volume. But, for the judicial task itself, for its 

essence and moral justification, the text is completely redundant. As long as 

a judge can convince the public and the political branches that what he does 

is legitimate because it emanates from the text, the text has served its purpose.