Versions of this article were presented at the San Diego Law School Faculty Colloquium, the
Courts, and the University of Sau Paulo Constitutional Law and Political Theory Colloquium.
I would like to thank the participants of these conferences for helpful suggestions and com-
Rosalind Dixon, Matthias Klatt, Conrado Mendes, Steve Smith, Larry Solum, Gila Stopler,
The Platonic Conception of the Israeli Constitution
269
I open the first class of my constitutional law course each year with a simple
question – does Israel have a constitution? There is always a long pause and
then conflicting answers of yes and no.
5
The purpose of this chapter is to document and explain how this situation
came about and discuss what it means for the relationship between text and
constitutionalism. My own answer to the question I pose to my students is the
following: Israel went from parliamentarism to constitutionalism without a con-
stitution in-between. Today, therefore, Israel does have a constitutional system,
including a strong form of judicial review and the protection of a full set of con-
stitutional rights, but it does not have a constitutional text. This is not entirely
accurate, but it is not very far from the truth. Israel has a fragmented and partial
draft of a constitution – its thirteen Basic Laws that were drafted intermittently
between 1958 and the present.
6
However, despite the fact that, as a text, these
thirteen Basic Laws are no more than an incoherent beginning of a constitu-
tion, and despite the fact that there was no political will behind their enactment
to make them a constitution (at least not yet), they operate in effect as if they
were a full-fledged constitution. The institution that is responsible for bridging
this gap and in effect created the Israeli Constitution is not a political organ but
the Supreme Court of Israel that has done so in a set of decisions spanning from
1995 until today. One may use the following analogy: the Basic Laws of Israel,
which were a political creation, were only a potential for a constitution – an
embryo constitution – but the processes of gestation and delivery were done
entirely outside of the political sphere, by the Supreme Court of Israel.
What this means in terms of the judicial relationship with the text is quite
far reaching. This is so, since in order to bridge this gap between embryonic text
and an actual functioning constitution, the Supreme Court of Israel needed
to do some radical interpretative adjustments to the text of the Basic Laws.
It needed, first, to read into these Basic Laws the proposition that they are
indeed a constitution, in the sense that they are superior to regular legislation
and that the Supreme Court has the authority to strike down laws that conflict
5
A Israeli colleague reading a draft of this paper tried to correct me on this point arguing that
while law students do not know that Israel has a constitution when
they begin their constitu-
tional law course, by the time they reach its end, they do. This, to my mind, only strengthens
my point regarding the uncertainty around the Israeli constitution.
6
They are Basic Laws: The Knesset (1958), Israel Lands (1960), The President of the State
(1964), The Government (1968, reenacted in 2001), The State Economy (1975),
The Army
(1976), Jerusalem, The Capital of Israel (1980), The Judiciary (1984), The State Comptroller
(1988), Freedom of Occupation (1992, reenacted 1994), Human Dignity and Liberty (1992),
Referendum (2014), The State Budget for the Years 2017 and 2018 (Special Provisions) (Tem-
porary Provision) (2017). See the Knesset website: “Basic Laws”
www.knesset.gov.il/description/
eng/eng_mimshal_yesod.htm
.