The Invisible Constitution in Comparative Perspective

rights in Israeli law” which seems to imply that all human rights were affected 

by the change and given special status. This ambiguity is repeated when Barak 

refers to the fact that Israel has now “joined the community of democratic 

countries . . . with constitutional bills of rights.” And has “become part of the 

human rights revolution.” If the change is the result of these two Basic Laws, 

with the very partial list of rights in them, how is it that Israel has now joined 

the democracies with full bills of rights? The ambiguity alludes to the sought 

after ideal – a constitutional protection of all rights.

Another important ambiguity can be found in the following sentence: 

“A regular law cannot infringe a protected human right unless the constitu-

tional requirements set forth in the Basic Law have been met.” The words do 

not refer specifically to the two Basic Laws of 1992, but to the requirements 

set forth in “the Basic Law” leaving it ambiguous whether the new status of 

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Iddo Porat

superiority is now accorded not only to the two new Basic Laws but to all Basic 

Laws – again alluding to the ideal Barak wishes to become a reality.

A close reading of these two opening paragraphs of Barak’s opinion in the 

Mizrahi case provides us with a fairly good picture of the interpretative pro-

ject that he is embarking on and also of the interpretative theory he employs, 

which I will call the “Platonic” conception of the constitutional text. His goal 

is to bridge the gap between the limited reality of the fragmented and partial 

Basic Laws, and the ideal of a full constitution with a full bill of rights, thus 

also bridging the gap between Israel the rest of the Western world.

9.2.2.  The Doctrinal Implementation of the Ideal and Conflicts with the Text

Completing the ideal picture envisioned in these opening paragraphs would 

require at least four radical interpretative moves, one of which has a limited 

basis in the text of the Basic Laws, and the rest with no basis at all, or even 

standing in contradiction to the text. The first interpretative move is to make 

clear the superiority of the two Basic Laws of 1992 over regular legislation and 

the authority of the Court to strike down laws conflicting with them. This 

move has some basis in the text since, as mentioned earlier,

30

 one may con-

clude from the limitation clause included in these two Basic Laws that they 

are superior to regular legislation, and that the Court has judicial review with 

regards to them. However, the text of the two Basic Laws does not say any-

thing explicit about the superiority of these two Basic Laws nor about judicial 

review, and a more cautious Court could have interpreted them differently.

The second move is to declare all Basic Laws, not only the last two ones 

from 1992, as superior to regular legislation and as having constitutional sta-

tus. This move has no basis in the text, and stands in contrast to all prior cases 

that dealt with this question. The two 1992 Basic Laws do not mention the 

nine older Basic Laws at all, and the nine older Basic Laws do not include 

any indication as to their superiority in their text either, except for those few 

provisions that are procedurally entrenched. In addition, as mentioned ear-

lier, a long line of cases ruled very clearly that these old Basic Laws have no 

constitutional status and no superiority over regular laws.

31

 However, declaring 

the older Basic Laws constitutional was crucial for the project of building up 

a constitution out of the Basic Laws, since it was hard to create a constitution 

30 

See note 20 and accompanying text.

31 

See note 15 and accompanying text.

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