The appropriate response to Basic Law: Torah Study
If Basic Law: Torah Study is not repealed, the appropriate answer is to balance it by anchoring in Basic Law the democratic values of the state in the spirit of the Declaration of Independence: equality, the rule of law, the separation of powers, and the independence of the judiciary.
The Knesset, sitting as a constituent assembly, established in its final week a new chapter in the Israeli constitution: Basic Law: Torah Study. This is likely the shortest Basic Law in the state's history, consisting of only one sentence: "Torah study is a fundamental value in the heritage of the Jewish people and in the State of Israel." Yet, precisely because of its apparent simplicity, it marks a dangerous constitutional turn.
Not only its content raises difficulties, but also the manner in which it was enacted. A Basic Law intended to be part of the future constitution of the State of Israel was not discussed in the Constitution, Law and Justice Committee—the natural body for shaping the rules of the constitutional game—but in the Knesset Committee. It passed quickly, without significant public or political debate regarding its constitutional implications, and was ultimately accepted by a coalition majority of 63 Knesset members against 52 opponents. Thus, through a hasty procedure and without broad consensus, a new cornerstone was added to the Israeli constitution.
Basic Law: Torah Study, enacted out of narrow political considerations, must be repealed. However, as long as it stands, it provides an important lesson regarding one of the proposals appearing in public discourse in recent years: the idea of a "thin constitution." According to this concept, one should be satisfied initially with a constitution that regulates only institutional and procedural rules, avoiding controversial value-based decisions, which can be postponed to the future.
This idea is based on an illusion: there is no such thing as a "neutral" constitution. Anyone who proposes freezing the existing constitutional situation and avoiding the addition of new values is actually seeking to anchor precisely the values already reflected in the Basic Laws. In other words, a "thin constitution" is not an avoidance of value-based decisions; it is a value-based decision in itself—a decision in favor of preserving the status quo. And the status quo is far from neutral. It means that the right to equality will continue to lack explicit anchoring in the Basic Laws, that Basic Law: Israel - The Nation-State of the Jewish People will remain without necessary checks and balances, and that the savings clause in Basic Law: Human Dignity and Liberty will continue to grant immunity to outdated religious arrangements from the fifties. Now, Basic Law: Torah Study will also become a permanent part of Israel's constitutional fabric.
A constitution cannot be merely a mechanism of power; it must also be a document of shared values. Without these anchors, Israel will not have a "thin constitution," but a deficient and one-sided one. Even before this constitutional coup, the "thin constitution" was a problematic idea. After it, it became inconceivable. It is impossible to speak of freezing the constitutional situation precisely after the coalition added a new chapter to the constitution, which constitutes an abuse of constituent authority. This Basic Law is intended to promote narrow political interests, grant constitutional advantage to one sector at the expense of others, and create a normative infrastructure to justify legislation that perpetuates the military service exemption for the Haredi public.
Moreover, now that the Basic Laws include both the Nation-State Law and Basic Law: Torah Study, it is difficult to accept the claim that there is no place to anchor the principle of equality in the Basic Laws because it is "controversial." If the Knesset is capable of anchoring values with a distinct ideological charge in the constitution, there is no justification for continuing to present equality—one of the fundamental principles of any liberal democracy, upon which the idea of majority rule is based—as a subject that must not be touched.
The Basic Laws are not merely a technical instruction manual for government authorities. They express the social contract upon which shared life in the State of Israel rests. If Basic Law: Torah Study is not repealed, the appropriate answer is to balance it by anchoring in Basic Law the democratic values of the state in the spirit of the Declaration of Independence: equality, the rule of law, the separation of powers, and the independence of the judiciary.
Yaniv Roznai is a full professor at the Harry Radzyner Law School, Reichman University. Tamar Hostovsky Brandes is an associate professor at the Faculty of Law, Ono Academic College.
