|
Iddo Porat
sense, not the “real” thing. Texts of constitutions are the result of political
compromises, and of the works of humans who are influenced by the con-
tingencies of their time and culture, and the pressures of the hour. They may
even be the work of ignorant or racist people. Constitutional texts are thus
imperfect things, and are prone to be so. They can also be incomplete or filled
with caveats. And they are temporal and can be revoked or changed. The only
“real” thing is the Idea of a constitution, or the Idea of a constitutional right,
as these Ideas, or ideal Forms, are absolved from the imperfections of the
text, transcend national borders and historical circumstances and are, in
essence, objective and eternal.
The crucial element in this interpretative theory is the role assigned to the
constitutional judge. The judge owes her allegiance to the objective, abstract,
and pure Idea of the constitution or of the right, and not to the imperfect
contingent manifestation of it in the text. Weinrib writes: “the judicial func-
tion is to evaluate whether the state’s encroachment on the right violates the
constitutional principles of equal citizenship and inherent human dignity [the
objective right], of which the specific guarantees [subjective right] are impor-
tant but not exhaustive exemplars.”
59
The judge should apply to the case the
ideal Form and not the flawed text, or at least he or she should strive to do so,
and should get direction and guidance directly from that ideal Form.
Another important feature of Weinrib’s quote, especially if put in the con-
text of my suggested analogy to the Israeli case, is that this Form includes not
only constitutional rights, but also some institutional aspects such as judicial
review and the ability to invalidate laws. All of them comprise the “objective
value order” which “transcend the history, cultural heritage and social mores
of any particular nation state.”
Note finally that the objective value order also has a substantive focal point,
or center – it is “equal citizenship and inherent human dignity.” For Weinrib,
so it seems, these two principles are the essence of constitutionalism, and from
them both the constitutional institutions and the different manifestations of
constitutional rights are derived. We might view them as a higher order ideal
Form. The text is only a manifestation of the ideal Form of rights, and these
rights, in their turn, are only manifestations of the ideal Form of the supreme
or overarching right, which is “equal citizenship and human dignity.” The
influence of German Constitutional jurisprudence and theory is evident here
as well, as it similarly has an overarching constitutional value – human dig-
nity. As mentioned earlier Germany is also the birthplace of such concepts as
59
Ibid.
, at 93–4.
The Platonic Conception of the Israeli Constitution
289
“objective value order,”
60
and in German jurisprudence the idea of the text as
only an approximation of the true right is explicitly endorsed.
61
This, although
there are some important special characteristics of the German version of the
Platonic conception that distinguish it, for example, from the Israeli version -
in particular the fact that it is accompanied by legal formalism.
62
9.3.4. The Platonic Conception and the Israeli Constitutional Revolution
All of this fits very well with Barak’s project of bridging the gap between the
ideal constitution and the imperfect text of the Basic Laws. For Barak and
for those Justices that joined his opinion in Mizrahi and in subsequent cases,
their allegiance is to the Idea of a constitution and not to its imperfect mani-
festation in Israeli law, and they therefore strive to move Israeli law as close as
they can to that Idea. This ideal Form, as in Weinrib’s account, includes both
the institution of judicial review itself and the content of the protected bill
of rights. Since the ideal Form of a constitution includes judicial review, the
Court can imply judicial review, even if it is not clear by the text or (as in the
case of the old Basic Laws), has no relation to the text.
63
Second, the limited
and imperfect list of rights in the Basic Laws is but a shadow of the true Idea
or Form of a bill of rights that the Justices should try and achieve through
interpretation. The filling in of the missing rights, despite its contradiction to
60
The term was coined in the Luth case of 1958; Lüth, Bundesverfassungsgericht [BVerfG] [Fed-
eral Constitutional Court] January 15, 1958, 7 Entscheidungen des Bundesverfassungsgerichts
[BverfGE] 198 (F.R.G.).
61
Jacco Bomhoff, Balancing and Constitutional Rights: The Origins and Meanings of Postwar
Do'stlaringiz bilan baham: | 
