9.4.1. Constitutionalism without a Text
Do we need therefore a text at all? Taken to its logical extreme it would appear
that according to the Platonic conception text is not required at all. We could
have constitutionalism without a constitution. Indeed, text could even be coun-
terproductive to constitutional adjudication, as it might drive judges away from
the true Idea of the constitution or of constitutional rights.
72
In one of his most
striking opinions, Justice Barak seems to arrive at this same conclusion. This
occurs in an opinion from 1989, before the two Basic Laws of 1992 and the consti-
tutional revolution. In the Laor case Barak writes the following as an obiter dicta:
In principle and theoretically, there exists the possibility that a court in a
democratic society would declare void a law that violates the basic princi-
ples of the system, even if these basic principles are not enshrined in an
entrenched constitution or Basic Law. There is nothing axiomatic in the
approach that a law is not invalidated because of its content.
73
A constitutional text, according to Barak, is therefore not required for the
understanding of the principles according to which a law can be invalidated
(what Barak terms the “basic principles of the society” and could be viewed as a
placeholder for what I called the Idea of a constitution), nor for the legitimacy
70
HCJ 4908/10 Bar-On v. Knesset (11.1.2011 not published yet).
71
See generally Yaniv Rosnai, Unconstitutional Constitutional Amendments (Oxford University
Press 2017).
72
For a similar claim made by way of critique of American constitutional law, see Foley, Supra
note 9, 152: “I shall suggest an account of constitutional interpretation in which the actual
language of the Constitution serves as little more than a potential obstacle to judicial decisions
reached independently by considerations of pure political philosophy. (By ‘pure political phi-
losophy,’ I mean the judge’s own normative beliefs about what the Constitution ideally ought
to say.)”
73
HCJ 14/86 Laor v. Films and Plays Censorship Board 41(1) PD 421 (1989), [30] (Justice Barak).
The Platonic Conception of the Israeli Constitution
293
for invalidating a law. According to Barak, there is “nothing axiomatic” in the
view that you need a constitution for a court to strike down a law. Justice Barak
could, in principle, have done everything he did when using the Basic Laws
even without them.
If there is no purpose for the text at all, according to the Platonic scheme,
how is it that Barak nevertheless did not embark on the constitutional revolu-
tion project without some anchoring in a constitutional or quasi-constitutional
text – i.e., the two 1992 Basic Laws? Even for Barak and for the Platonic
view, there seems therefore to be some importance to the constitutional text,
though it is purely instrumental. The text is required to provide legitimacy to
the Court in the eyes of the public. It is required in order to achieve the coop-
eration of the political branches with the Court and its rulings. There may be
other instrumental reasons, such as coordination, or education, or reducing
litigation costs, or litigation volume. But, for the judicial task itself, for its
essence and moral justification, the text is completely redundant. As long as
a judge can convince the public and the political branches that what he does
is legitimate because it emanates from the text, the text has served its purpose.
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