as a stronghold of the Israeli Left after it had lost power in the political sphere). See also
The Platonic Conception of the Israeli Constitution
285
In terms of the political system’s response, or lack thereof, one common
account is that the political system was caught off-guard, and by the time it
fully realized the scope of the change it was confronted with high legitimacy
and path dependency costs in terms of unraveling of the change.
49
In this
respect such a revolutionary move by the Court could only happen once, as
the political branches would not be caught off guard a second time. Courts,
generally, under this explanation, have a one-shot attempt at making revolu-
tionary moves. Other accounts stress the advantages of constitutional judicial
review for the political actors themselves – in particular, the fact that the Court
would now be the final arbiter on some of the “hot button” issues in Israeli
society, thus taking on all the blame for unpopular but unavoidable decisions.
9.3.2. Theoretical and Conceptual Framework – The Platonic Conception
While these are all very pertinent and important questions, I will concentrate
on another question in this chapter: what kind of theory or conceptual frame-
work could be posited to lie behind and justify the constitutional revolution?
Or, to put the question more concretely, what kind of assumptions regarding
the relationship between the Court and the constitutional text are necessarily
implied by this move? This conception, and these assumptions, one should
note, are not necessarily those that the Court explicitly proclaimed to rely on,
or was even consciously aware of but, in a sense, the Court must be seen to
adopt them, as indicated by its own decisions and reasoning.
Also, it should be noted that the theoretical question is not completely sepa-
rable from the socio-political questions as the choice of the particular concep-
tion that I will identify may have been affected by the extent to which it was
congenial to the political aims of the judges. But, nonetheless, the question
what this conception is, is a different and to some extent independent one
than the question of what were the socio-political reasons behind the judicial
move that was described above.
50
9.3.3. Plato’s Idealism and Constitutional Interpretation
Plato has famously distinguished between Idea (not to be confused with the
modern English use of the word “idea”) and Matter, between Form and
49
See Ori Aronson, “Why Hasn’t the Knesset Abolished Basic Law: Human Dignity and Liberty?
On the Status Quo as Countermajoritarian Difficulty” (2006) 37
Tel Aviv University Law
Review (Hebrew).
50
One may view this is a kind of
Transcendental Argument in the Kantian sense asking “if a
theory of interpretation for the constitutional revolution were possible, how must it look like?”
286
Iddo Porat
Substance, and between noumenon and phenomenon.
51
In Plato’s theory of
Ideas the only real things are the Ideas or the pure Forms or
noumena, but
they are transcendent and beyond the reach of human perception. Ideas are
a-spatial and a-temporal, they are eternal, unchanging, abstract, and perfect.
Matter, Substance and phenomena are imperfect, changing, and temporal.
They are an imperfect manifestation, example and instance of the pure and
perfect “blueprint” which is the Idea or the Form. For example, a triangle
drawn by a chalk on a blackboard is imperfect, spatial and temporal – the
hand may shake writing it, it has a width and takes space, and it can be erased
and thus cease to exist; but the Idea of a triangle, is abstract, a-special,
a-temporal, and therefore also perfect and eternal.
According to Plato, only Ideas are true, whereas the world of Matter and of
Substance is an illusion. It is an illusion because we perceive it through our
imperfect senses, and can never view directly the real things. Ideas and Forms
are also an answer to the problem of universals. They give an answer to the
question how is it that there are many different things which are all one and
the same. All triangles in the world are instances and manifestations of the
Idea of the triangle, and all take part of it, imitate it, and try to be close to it,
and in virtue of that fact can all be called triangles.
52
The famous allegory of the cave exemplifies the relationship between Idea
and Matter as the relationship between an object and its shadow. Human
beings are analogized to prisoners in a cave who can only see on the cave’s
walls the shadows of the figures that are behind them. The figures are the real
things, while the prisoners can only see their shadows and reflection.
53
To exemplify what I mean by the term Platonic conception of the constitu-
tional text I will begin with a quote from an important Canadian constitutional
scholar – Lorraine Weinrib of Toronto Law School – that most succinctly
captures this concept.
54
Weinrib, I will argue, shares the same conception that
51
See Silverman, Allan, “Plato’s Middle Period Metaphysics and Epistemology,” The Stanford
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