The Invisible Constitution in Comparative Perspective

9.4.3.  Answers to Objections

The Platonic conception is a heuristic device to illuminate some of the main 

features of the Israeli Court’s, as well as other courts, attitude toward the con-

stitutional text. As such this heuristic is not hermetically sealed against inad-

equacies and cannot present a perfect analogy. In addition, it is not the only 

74 

Ibid.

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The Platonic Conception of the Israeli Constitution 

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heuristic that can be used to describe the phenomenon I wish to describe. 

In this last section I wish to explain this choice and defend it from possible 

objections. I will review three main objections.

One objection may stem from the difficulty of accepting the metaphysics of 

the Platonic account. According to Plato, the Ideas or true Forms really exist. 

They are not just an interpretative construct, but actual entities in the world. 

This makes the Platonic philosophy implausible to many. Other accounts 

which resemble the Platonic account evade this difficulty by not adopting 

its metaphysics. Such is, for example, Michael Moore’s idea of “functional 

kinds” which he uses to describe the law.

75

 My reply is, first, that using the 

Platonic account as a heuristic does not require adopting it as truth. I argue 

that the relationship between text and the ideal (or template) constitution 

resembles the relationship between Matter and Idea. This does not mean that 

the ideal constitution actually exists as a real entity. Second, as mentioned 

earlier, the adoption of the Platonic account for the analogy is not a necessary 

one, and does not exclude other effective analogies. It is, however, advanta-

geous to other possible heuristic accounts (such as Moore’s functional kinds), 

even if those might be less philosophically demanding, because of its simplic-

ity and ability to catch the public imagination. Plato and his idealism are well 

known cultural constructs, and are therefore effective in making the point if, 

as I hope, they resemble closely enough the phenomenon I wish to describe.

Other possible objections can address the inadequacies in the analogy, 

some of which have already been discussed. I will discuss here two. First, one 

may ask how far does the analogy go – do all constitutional rights have an ideal 

Form? Does the ideal Form of a constitution include all institutional arrange-

ments that constitutions have, some of which are very technical? The answer 

to these questions is that this is a matter of degree, and that while there may be 

borderline cases, some examples fall clearly either on the side of being part of 

the ideal Form or not. For example, the central human rights, such as equal-

ity, political freedom, freedom of conscience are quite clearly (in the eyes of 

those to whom I assign the Platonic conception, such as Justice Barak) part 

of the ideal Form of the constitution. Such is also the institution of judicial 

review itself. However, other rights may be viewed as contingent or culturally 

based, and therefore not part of the ideal Form, such as, for example, the right 

to bear arms in the American Constitution.

76

 The same may apply to some 

institutional arrangements, such as the type of judicial review adopted (e.g., 

75 

See Michael Moore, “The Semantics of Judging” (1980) 54 Southern California Law Review 

151; Michael Moore, “Law as a Functional Kind”, in Robert George (ed.) Natural Law Theo-

ries (Oxford: Oxford University Press, 1992). I thank Larry Solum for this point.

76 

The Constitution of the United States, Amendment 2.

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