The Invisible Constitution in Comparative Perspective

Cooperative Settlement, P.D. 49(4) 221, [24]–[29] (1995) (Justice Barak).

15 

See H C J Kaniel v. Minister of Justice, PD 27(1) 794 (1973); HCJ 60/77 Ressler v. Chairman 

of Elections Committee, PD 31(2) 556 (1977). In both these decisions the Court ruled clearly 

that the title Basic Law was only semantic, and that Basic Laws have no superiority over reg-

ular laws. See also Amnon Riechman “Judicial constitution-making in a divided society – the 

Israeli case” in Robert Kagan, Diana Kapiszewsk and Gordon Silverstein (eds.) Consequential 

Courts: New Judicial Roles in Global Perspective (Cambridge: Cambridge University Press, 

2013) 257.

16 

See HCJ Bergman v. Minister of Finance, 23(1) PD 693. For an English translation see (1969) 

4 Israel Law Review 559.

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The Platonic Conception of the Israeli Constitution 

275

To conclude, in the first stage of Israeli constitutional law, from its forma-

tion in 1948 until 1992, Israel was categorized as a system without a formal 

constitution. It had, however, nine Basic Laws that were enacted with the 

idea that they might become part of a constitution one day. None of these 

Basic Laws protected human rights. One should add, though, that the Court 

did develop an impressive set of civil rights, including the rights to freedom 

of speech, equality, freedom of consciousness, freedom of religion and from 

religion, freedom of occupation, liberty from arrest, due process of law, and 

the right to fair trial. These rights were made judicially, without a textual basis, 

and applied only to the executive, through administrative law. They could 

not be used to defy a formal manifestation of legislative will (i.e., no judicial 

review over primary legislation).

17

9.1.2.  Second Period: The Two Basic Laws, 1992–1995

All of this changed in two steps – the enactment of two new Basic Laws in 

1992, and their interpretation by the Court in a seminal decision in 1995 and 

in subsequent decisions that complemented it. To tell the story in a nutshell –  

in 1992 the Knesset enacted two Basic Laws that were a step in the direction 

of a constitution, and the Supreme Court seized the moment and decided 

to complete the job. I will leave the description of the Court’s reasoning to 

Section 

9.2

.

In 1992 two new Basic Laws were adopted by the Knesset – Basic Law: 

Freedom of Occupation (protecting the freedom of occupation),

18

 and Basic 

Law: Human Dignity and Liberty (protecting the rights to life, bodily integrity, 

dignity, property, liberty, exit and entry into the country, and privacy).

19

 These 

two Basic Laws therefore included, for the first time, a partial list of civil rights 

protections. They also included a “limitation clause” based on a similar pro-

vision in the Canadian Charter of Rights and Freedoms: “There shall be no 

violation of rights under this Basic Law except by a law befitting the values of 

the State of Israel, enacted for a proper purpose, and to an extent no greater 

than is required, or by regulation enacted by virtue of express authorization in 

such law.”

20

 Since the limitation clause set exclusive conditions for when a law 

can violate a right, it implicitly maintained that a law that did not meet those 

conditions would be invalid, and hence, that these two Basic Laws were supe-

17 

See Navot, Supra note 133, 199; David Kretzmer, “Fifty years of Supreme Court Jurisprudence 

in Human Rights” (1999) 5 Haifa Law Review 297, 298–300 (in Hebrew).

18 

Basic Law: Freedom of Occupation, s 2–3.

19 

Basic Law: Human Dignity and Liberty, s 2–7.

20 

Basic Law: Human Dignity and Liberty, s 8; Basic Law: Freedom of Occupation, s 4.

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276