9 - The Platonic Conception of the Israeli Constitution

Summary

In this Chapter I present a constitutional interpretative theory, which I term the “Platonic Conception of the Constitution”, and apply it to Israeli constitutionalism. According to this conception the constitutional text is only an approximation – an imperfect shadow – of the ideal constitution. Judges should strive to bridge the gap between the written and the ideal constitution, and owe their allegiance primarily to the latter rather than to the former. This theory, I argue, best explains the judicial attitude that allowed the Israeli Supreme Court to bridge the gap between the very partial and incomplete text of the Israeli Basic Laws and a full and functioning judicially-constructed constitution with an extensive bill of rights and strong judicial review. In the Chapter I present this theory and how it is implicit in Israeli case law, discuss its ties with the Post WWII European conception of constitutional rights, and provide an initial critique of it.