The Invisible Constitution in Comparative Perspective

9.4.2.  Democratic Justification and Judicial Review

The Platonic conception of the constitution presents formidable normative 

challenges to those who adopt it; foremost amongst them is the democratic 

challenge. Shouldn’t the constitution – the highest law of a people – be 

adopted by the people themselves, rather than by a court? As I mentioned 

in the introduction, I believe this normative challenge is very serious. The 

advantage of the account I offer, hopefully, is in exposing the full thrust of this 

challenge since it exposes much of current constitutionalism in the European 

tradition for what it is – a project in which The People have no substantial or 

foundational place. Since the normative account is not my main aim, I only 

present here the way Justice Barak gives an answer to this challenge. Note 

how this answer is itself a rare moment of clarity in which there is no attempt 

to find democratic will behind the constitution. Here is Barak’s answer in the 

Laor case, quoted above, when justifying his position that text is not required 

for judicial review:

In invalidating a law by the court because of its extreme infringement of 

basic principles the principle of parliament sovereignty is not harmed, since 

sovereignty is never indefinite. There is no harm to the principle of sepa-

ration of power, since this principle is based on checks and balances that 

restrict each one of the branches. There is no harm to democracy, since 

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democracy is a delicate balance between majority rule and human rights and 

basic principles and in this balance the safeguarding of human rights and 

basic principles cannot be seen, in itself, as undemocratic. It is not harmful 

to the office of the judiciary since it is the task of the judiciary to safeguard 

the rule of law, including the rule of law over the legislator.

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Democracy is therefore not hurt, according to Barak, since democracy is not 

only the rule of the majority, but a delicate balance between the rule of the 

majority and human rights and basic principles. The court does not need 

a text in order to know what human rights and basic principles are – this is 

established already if we accept the assumption of the Platonic conception of 

the constitution – and, according to Barak in this quote, applying these prin-

ciples on the legislator is not contrary to democracy, although it is not done in 

the name of the people’s will as expressed in a constitution, since the will of 

the people is not the only thing that matters in a democracy. When the court 

restricts the will of the people because of principles of human rights “this can-

not be seen, in itself, as undemocratic.”

The theory of judicial review and of democracy, therefore, is based on a 

substantive rather than a formal conception of democracy, and is not based 

on the idea that the will of people stands behind the constitution. Hence, also, 

the fact that the Basic Laws were not voted on with any substantial majority in 

the Knesset, nor did they reflect any robust process of public deliberation, is 

inconsequential for Barak, and does not hamper their legitimacy in his eyes. 

The Basic Law’s legitimacy comes from the fact that they are an imperfect 

instance of the true Form of a constitution, and even if they were not voted 

on by any of the Knesset members, to the extent that they partook in this ideal 

they were valid. What is also clear from Barak’s account is that the only insti-

tution from which we should not be afraid of subverting the ideas of human 

rights, basic principle, and the rule of law, and who therefore can impose those 

ideas on every other organ but need not be supervised or restricted itself –  

is the court.