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The Platonic Conception of the Israeli Constitution
283
human dignity – the right to family,
39
the right to social security and minimal
living conditions,
40
and the right to education.
41
The last interpretative move to be discussed here was required for purposes
of coherency and “workability” of the entire project. Since only the last two
Basic Laws included a limitation clause, all the earlier Basic Laws had no
mechanism that allowed for limiting the provisions that they had set, and any
law that conflicted with them had to be struck down. This created a practi-
cal problem, and also inconsistency between the different Basic Laws. The
interpretative solution was striking. In a case from 1999 the Court simply read
limitation clauses into all the earlier Basic Laws, which are now known as
“judicial limitation clauses.”
42
Another interpretative move that I characterize
as stemming from coherency is the judicial theory according to which any
change in a Basic Law has to be done itself in a Basic Law.
43
This too has no
indication in the text of the Basic Laws, but is required since unlike other con-
stitutions the one stemming out of the Basic Laws does not have a mechanism
for its amendments, so that the Court had to provide for one.
Despite attempts at coherency and consistency, several inconsistencies and
anomalies were left unresolved. Primary amongst them is the fact that today
the Knesset can enact a constitutional norm that will have superiority over
regular legislation, and even entrench it in any majority it wishes, and the
only formal requirement needed for that is to give it the title “Basic Law.”
Otherwise the legislative process is of a regular vote, with a regular majority of
the Knesset members present at the vote, just like any other law. The Knesset
can similarly amend any Basic Law that is not entrenched (and most are not)
without the need for any super majority, as long as it calls the amending law
a Basic Law. There are several more anomalies and inconsistencies that are
left unresolved, which for purposes of brevity I will not discuss here. However,
whatever the anomalies and inconsistencies, as of today, the Israeli legal and
political system seems to have accepted the idea that the Supreme Court has
the authority to strike down laws that conflict with Basic Laws, and that these
Basic Laws protect an entire bill of rights. What kind of interpretative theory
can justify such radical deviation from the text? This will be the subject of the
next section.
39
HCJ 466/07 Gal-On v. Attorney General (11.1.2002).
40
HCJ 366/03 Commitment to Peace and Social Justice Society and others v. Minister of Finance,
60(3) 464, [1]–[7] (2005) (Chief Justice Barak).
41
HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education,
PD 56(5) 834 (2002).
42
EA 92/03 Mofaz v. Central Elections Committee, PD 57(3) 793, [1], [15]–[17] (2003).
43
Mizrahi, Supra note 3 (Chief Justice Barak).
284
Iddo Porat
9.3. The Platonic Conception of the Constitutional Text
9.3.1. Distinguishing Socio-Political and Conceptual Questions
As a matter of political fact, the “constitutional revolution” that started with
the Mizrahi case was an astounding story of success. The gap between textual
reality and ideal was indeed bridged, and the judicial framework set in the
case is now the undisputed law of the land. This raises fascinating political,
social, and institutional questions regarding why this revolution happened in
the first place, why it was so successful, and why did the political branches not
react to it. I will briefly discuss these questions here, and then go on to address
my main question in this chapter which is conceptual and theoretical.
First, one may give answers to the question why the Court embarked on
this project that rely on internal legal reasons. Such an account could be,
for example, that the advancement of rights protection jurisprudence world-
wide, as well as in the jurisprudence of the Israeli Supreme Court, created
an internal legal pressure to expand the set of rights protected, as well as the
scope of their protection. In particular, the inclusion of only a limited set of
rights in the new 1992 Basic Laws created consistency pressures on the Court
to include a full set of rights, as happens in other constitutional systems that
have only partial lists of rights, such as Australia.
44
Second, from a more general socio-political perspective, an account given
by several Israeli scholars is that the Court was compensating for changes in
Israel that eroded the dominance of the liberal left in Israeli politics and soci-
ety.
45
The constitutional project was a way of arresting some of these changes,
or a way of conferring power on the Court that would protect the interests of
the liberal left camp that were eroded in the political sphere.
46
Another related
account points to the relative weakness and inefficiency of the political system
in Israel at the time of the move, which allowed for a judicial power-grab
47
or,
under a different description, created a governance vacuum that pulled in the
Court.
48
44
See Rosalind Dickson’s contribution to this book.
45
See Gavison, Supra note 21 (arguing that the Israeli constitutional project was a way of arrest-
ing rather than facilitating change).
46
See e.g., Ran Hirschle, “The Struggle for Hegemony: Explaining the expansion of Judicial
Power through the Constitutionalization of Rights in Culturally-divided Polities” (2000) 36
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