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This volume explores a new topic in comparative constitutional law: towering judges. It covers nineteen judges (from fourteen jurisdictions) who made a significant impact on the trajectory and development of constitutional law in their societies. Some of these judges became well-known public figures, cultural icons, or political leaders. Some acted in crucial moments in their country's constitutional history or led their court in a new direction. Others acted in less fraught times and were known primarily within the legal profession for their intellectual brilliance and judicial craft. All of them, however, were able to shine individually to an uncommon degree in a profession where individualism is not always looked on favorably.
This chapter places the towering judges phenomenon in a specific historical and global context, i.e., at the height of global constitutionalism – c. the 1990s – when the liberal cosmopolitanism, human rights culture, and constitutionalization that had started after WWII peaked following the fall of the Soviet empire and an influx of new constitutional democracies. I list three connections between global constitutionalism and towering judges. First, global constitutionalism placed constitutional judges at the center of the moral and ideological revolution it presented, not only giving them immense moral authority, political influence, and prestige but also enhancing judicial personal agency, i.e., toweringness. Second, the conception of rights adopted at this time empowered judges to interpret rights broadly and expansively to reach, as much as possible, a universal ideal, which also promoted agency and creativity, i.e., toweringness. Last, to belong to the global community of judges that was a feature of global constitutionalism, a judge had to excel and stand out, i.e., tower. The chapter ends by exploring some of the normative challenges to the concept of towering judges.
In Towering Judges: A Comparative Study of Constitutional Judges, Rehan Abeyratne and Iddo Porat lead an exploration of a new topic in comparative constitutional law: towering judges. The volume examines the work of nineteen judges from fourteen jurisdictions, each of whom stood out individually among their fellow judges and had a unique impact on the trajectory of constitutional law. The chapters ask: what makes a towering judge; what are the background conditions that foster or deter the rise of towering judges; are towering judges, on balance, positive or detrimental for constitutional systems; how do towering judges differ from one jurisdiction to another; how do political and historical developments relate to this phenomenon; and how does all of this fit within global constitutionalism? The answers to these questions offer important insight into how these judges were able to shine to an uncommon degree in a profession where individualism is not always looked on favourably.
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.