|
The Platonic Conception of the Israeli Constitution
281
out of only two Basic Laws, and since leaving the older Basic Laws out of the
constitutional scheme would have created a strong sense of incoherency.
The first two moves were achieved in the Mizrahi case and in an additional
case, and are both imbedded in the doctrinal and theoretical framework pre-
sented by Justice Barak in Mizrahi.
32
I will present this doctrine here only
briefly, as it is not my main focus in this chapter, and as I view it as having
mainly instrumental value, i.e., its value for those who support it stems mainly
from the fact that it is the theory most suited for implementing the ideal of
a full constitution. According to Barak’s opinion in Mizrahi, the first Knesset
had the authority to write a constitution, as it was elected as the constituent
assembly. While it did not use this authority, it bequeathed it to all subsequent
Knessets and they used it when they enacted Basic Laws according to the
Harari decision. Therefore, every Knesset has two “hats” simultaneously – the
regular legislative hat it uses when it enacts regular laws, and the hat of the
constituent assembly, when it enacts Basic Laws. This is known as “the theory
of the two hats” or as “the theory of the constituent authority.” Basic Laws are
thus written not by the Knesset, but by the constituent assembly or, to put it
more accurately, by the Knesset in its capacity as the constituent assembly.
33
The theory of the two hats achieves at once the constitutionality of the two
1992 Basic Laws and the constitutionality of all older Basic Laws, as well as all
future Basic Laws. This is so since constituent assemblies have the authority
to write constitutional law, and since Basic Laws are the product of the constit-
uent assembly. Basic Laws therefore have superiority over regular legislation,
even before they are collected and compiled into a constitution, and even if
there is no textual indication of their superiority (note that the second inter-
pretative move is not wholly consistent with the first one, since now superior-
ity is derived from theory of the two hats, rather than from limitation clauses).
The theory of the two hats itself has no direct indication in any text, and stands
in contrast to all prior case law that viewed Basic Laws as regular legislation.
34
It is derived in Barak’s opinion from the interpretation of the constitutional
history of Israel and the application of jurisprudential analysis to it.
35
32
While the doctrine of the “two hats” was not adopted by a majority of judges in Mizrahi,
a majority of judges did rule that the two Basic Laws of 1992 are superior to regular legislation
and allow for judicial review. The case that further extended this superiority to the older Basic
Laws is HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee PD
57(1) 750 (2003).
33
Mizrahi, Supra note 3, [7]–[33] (Chief Justice Barak).
34
See note 15 and accompanying text.
35
Mizrahi, Supra note 3, [38] (Chief Justice Barak).
282
Iddo Porat
The third interpretative move is as crucial as the first two – the Basic Laws
must be interpreted to include a full rather than a partial list of rights, as oth-
erwise the ideal of a full constitution is not achieved and the Court is left with
only a very partial list of rights that excludes some of the most central rights,
such as equality, free speech, and freedom of conscience. The third inter-
pretative move was not achieved in the Mizrahi case, but only in later cases
in which the right to human dignity in the Basic Law: Human Dignity and
Liberty was interpreted to include in its meaning all other rights. The theory
was that human dignity is a basic and foundational concept that includes all
manifestation of individual autonomy and therefore implies all rights, includ-
ing those rights that were not specifically mentioned in the Basic Laws.
36
The
theory is sometimes referred to as the theory of implied or unenumerated
rights, similar to the theory in the United States constitutional law. However, it
seems much more radical than its United States counterpart, or similar inter-
pretative moves in other countries, as it is practically limitless – the unenu-
merated list of rights includes, in principle, all known rights in the liberal
constitutional tradition.
The third interpretative move also has no textual basis in the Basic Laws.
Indeed, as indicated by an important law review article from 1997,
37
it stands
against the logic and structure of the Basic Laws since, had the Knesset wished
the right to human dignity to include all rights, it need not have bothered to
write down specific rights in addition to it, such as the right to privacy, prop-
erty, liberty from arrest, and so on, while leaving other rights out of the text.
Of course, this interpretation also directly contradicts the intentions of the
drafters of the two Basic Laws of 1992, as the rights that were not included in
them were intentionally left out as part of the compromise that allowed for
the support of the religious parties. Nonetheless, today, as a result of a series of
cases since 1995, all those rights that the religious parties wanted to exclude –
the right to equality, the right to religious freedom, the right to freedom of
conscience, and the right to freedom of speech – are included in the scope of
protection of Basic Law: Human Dignity and Liberty.
38
In addition, the follow-
ing rights were also included in this Basic Law as stemming from the right to
36
HCJ 6427/02 Movement of Quality of Government in Israel v. the Knesset, PD 61(1) 619,
[30]–[43] (2006) (Chief Justice Barak).
37
Hillel Sommer, “The Unenumerated Rights: On the Scope of the Constitutional Revolution”
(1997) 28 Mishpatim 257 (in Hebrew).
38
See Movement of Quality of Government in Israel, note 36.
Do'stlaringiz bilan baham: | 
