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t’s late October and Israel is still emerging - gradually - from its second lockdown. Even though some COVID-19 regulations and restrictions remain in place, you can still find a fair number of stores and restaurants with their doors at least partially open. Earlier this month, I walked into an ostensibly shuttered café in Tel Aviv and sit down at the bar. To circumvent the restrictions, the server instructed me to say I’m waiting for a takeaway order. What started as a minor infraction within the four walls of a café has now escalated into announcement by a chain of shopping centers that it will open its stores - in violation of government directives.

Something appears to have gone horribly wrong with the national compliance mechanism during the Coronavirus crisis, and one does not have be particularly discerning to get a sense of this. During the second lockdown period, especially, with outrage on social media at videos showing heavy-handed police officers clamping down on people out in public without face masks, news broadcasts opening with reports about illegal gatherings of various kinds, and anti-Netanyahu protesters taking to the streets and violating the social distancing restrictions imposed by the government.

Ongoing processes can be hard to understand, but serious and far-reaching questions have already been raised: Is Israel at a historic point in time, with the government is losing its decision-making legitimacy? Have Israelis discovered the charm of disobedience? And how socially inflammatory are the distrust, the economic despair and the rage that are in the air? Shomrim spoke to three leading scholars whose fields of research focus on the intersection of politics and law, and the relationship between government and citizens, and asked them to analyze the moment in time in which we find ourselves.

"We need to begin by asking why people comply in the first place," explains Prof. Guy Ben-Porat, head of the Department of Politics and Government at Ben-Gurion University. "According to the instrumental view, people comply because they’re afraid of punishment and expect reward. According to the normative view, people comply because they believe that the authority demanding their compliance is a worthy authority. A regime that rests solely on instrumental compliance is a weak regime because, from its perspective, punishment also comes at a cost. A regime needs legitimacy too. What we’re seeing right now is a loss of legitimacy - of the government and its various institutions - and that’s a dangerous situation.

"COVID-19 has laid bare Israel’s much-weakened public systems - health, welfare and education," Ben-Porat continues. "It’s exposed just how fragile the economic existence of some of the population is, including people who had a reasonable standard of living before the crisis. The pandemic has also highlighted the rifts in Israeli society, and the red lines of the various groups."

Prof. Ben-Noon: "The government must understand the cause of civil uprising. It can say to the objectors: ‘Thanks very much for doing the work for me, now we can change a little. Not a dramatic change, but a change - because we want to keep democracy alive and because democracy is important.’ And that’s actually the big question: Just how important is it to the government to preserve democracy here?"

"The fact that people have been isolated and have had the time to stop and think has sparked both internal and external processes that lead to this escalation," says law professor Chemi Ben-Noon, author of ‘Civil Disobedience: The Israeli Experience.’ "In Israel today, there’s intentional discrimination in favor of certain sectors, the economic fabric has been damaged, people feel personally hurt, and there’s also a sense of being trampled on."

Have groups and individuals in Israeli society embarked on a path of civil disobedience? Ben-Noon advises caution. Defining a particular course of action as civil disobedience, he says, can only be done in retrospect. "It’s hard to ascertain the precise moment at which a large group of people stands up and says: Enough is enough. And it’s hard to define the moment at which everything erupts."

"Civil uprising," as it turns out, is an elusive term, for which there doesn’t seem to be a tight and widely accepted definition; it’s a hybrid sorts, ranging from indifferent submission to violent revolt. Prof. Joseph Raz, a leading expert in the areas of legal, moral, and political philosophy, explains that a civil uprising can describe several overlapping but different phenomena. "I’d use the term to describe illegal action taken to affect a law or policy." Raz, professor of law emeritus at Columbia Law School and part-time professor at King’s College in London, says that there are instances in which the perpetrators of the civil uprising aren’t aware that they’re breaking the law, while in other instances, breaking the law is an essential part of the protesters’ objectives and declared intentions.

According to Ben-Noon, a civil uprising is "a violation of the law that is politically motivated and aims to contribute directly to a change in legislation or policy, with the perpetrators having made it clear that they wish to remain under the prevailing political-legal system." In other words, an act of civil rebellion includes a built-in paradox: The non-compliant citizen seeks to undermine the system for the sake of the system itself. The motivation for violating the law is political, with the goal of defending democracy.

"In a civil uprising," Ben-Noon explains, "the protester decides that the regime or even the head of the government has gone completely overboard with a particular edict, regulation, policy or law, so much so that the individual says to himself: I’m willing to break the law and even serve time in prison - as long as my protest is heard - because I can’t tolerate it any longer. I would call such a person a responsible citizen, because he doesn’t want to overthrow the government or topple the political-legal system, but only wants to show, as an individual or as a group, that the jig is up. When exactly is that point reached, the point at which the jig is up? That’s anybody’s guess."

According to Ben-Noon, to speak of a civil uprising requires knowing the intentions of the objector. "If the objector is saying: I want this law to change, I want that policy to change, I want the individual at the head of the government to pack his bags and go home - all these are signs of a civil uprising. My primary concern is apathy, so as far as I’m concerned, a civil rebellion is better than a situation in which citizens are indifferent."

During the Coronavirus crisis, we’ve seen a fair number of sectors, groups and individuals who’ve chosen to ignore government directives that interfere with their daily routines or who want to voice their conscientious objections. Why have they done so? And just how potentially explosive is this blatant disregard for official state policy?

An ideological revolt

Rabbi Dov Halbertal, an ultra-Orthodox jurist and publicist, believes that "60 percent of the ultra-Orthodox world openly rebels against the state." In October this year, he told an Israeli radio station that, "They’re willing to put their lives on the line for the sake of preserving their piety. Netanyahu could call the Admor of Viznitz, and he’d laugh at him. Deep down, what we have here is an ideological revolt against the state."

The opening of the ultra-Orthodox educational institutions during the lockdown, in keeping with instructions from Rabbi Kanievsky, one of the leaders of the ultra-Orthodox community, left the secular public firmly convinced that the ultra-Orthodox are the most rebellious sector in Israel; a group that has broken away from the state and ceased to comply with its laws.

For the ultra-Orthodox, Ben-Porat explains, compliance is first and foremost a normative issue. "For some of them, the state’s call for compliance is illegitimate, certainly when it comes to matters that place Halakha [Jewish law] in opposition to the laws of the state. When the two clash, compliance is reserved for the rabbis, not the state. On the instrumental level, one could ask if certain incentives or punishments would cause the ultra-Orthodox to comply - and the answer is probably no."

Prof. Ben-Porat: "The level of confidence in the government at the moment is very low, and the erosion of legitimacy can have unforeseeable consequences. The demonstrators feel they have the right to violate the regulations."

Ben-Noon adds that, for an action to be defined as civil uprising, it must include a desire to rectify the existing democracy - something that does not exist for the ultra-Orthodox. "They want to solve a specific problem that concerns them, so their conduct can’t be considered civil uprising; rather, it’s an organized violation of the law or conscientious objection by people who believe that the laws of the state are subordinate to divine law."

Raz, who lives in the United Kingdom, prefers not to comment on the internal situation in the State of Israel, but explains that opposition to segments of the law on the part of religious factions is typical of conscientious objection. "With conscientious objection, the goal of the objectors is to avoid immoral behavior. From their point of view, they are breaking a law that would force them to behave immorally. A conscientious objector doesn’t have to have a political objective. He’s not aiming to change the law or public policy. He may want to change the law, but that’s not the purpose of his non-compliance."

Another sector constantly in the headlines is Arab society, which has managed to lower its morbidity rates thanks primarily to determined local leadership. But between one recovery and the next, Arab localities have returned to the top of the list of virus-hit communities, due in part to the insistence on staging mass wedding ceremonies that last for hours - without adhering to the social distancing guidelines or the use of masks.

"Among the Arabs, during the first phase," says Ben-Porat, "we saw a reversal of the trend. The moment the Arab public viewed the call by leaders to stop violating the regulations as legitimate, the violations stopped. This is an example of the advantage that normative influence has over the use of force. In this instance, the Arab leadership, along with several of the state institutions, managed to convey a sense that compliance was mandatory."

Another fine mess

The Coronavirus crisis period has been good to Tel Aviv’s newly revamped Dizengoff Square. Hanging out around Yaacov Agam’s fountain every evening you’ll find hundreds of youths eating takeaways and getting some fresh air for themselves and their pets. Few of them wear masks. On one such evening of late, a police patrol car circling the square repeatedly called on the youngsters to abide by the health regulations, but most remained completely indifferent.

Their disregard is no surprise. A Shomrim report revealed recently that almost 80 percent of Israelis fined for breaching the Coronavirus regulations have refused to pay up, creating an unprecedented situation of blatant and widespread disregard for law enforcement officials.

Raz explains that arguments about non-compliance usually revolve around how tolerant a society is toward people whose opinions fall far outside the consensus. The issue of the refusal to pay the fines, however, is different, he says. The refuseniks appear, at present, to constitute the vast majority, and the state needs to ask itself how we’ve ended up in a situation in which four out of five people aren’t bothering to pay their fines.

Those refusing to pay their fines, observes Ben-Noon, aren’t doing so as an act of defiance against the democracy. "Many of them are accusing the authorities of selective enforcement," he says. "They’re people who see public figures walking around without masks, so they don’t want to pay their fines. Selective enforcement is a legal term that simply says there’s no reason for one to benefit while the other suffers. It’s just on the edge of a civil uprising."

According to Ben-Porat, "People perceive these fines as part of an inconsistent system of regulations in which the leaders themselves are breaking the rules. There’s a sense that the fines are serving purposes not necessarily related to their stated goals. People are questioning the selective and inconsistent enforcement, which isn’t necessarily being done in keeping with epidemiological reasoning. There’s the sense that there’s no justification for paying the fines. If there’s no mechanism in place to make people pay, they won’t pay."

Protesting the PM

In September of this year, Prime Minister Benjamin Netanyahu described the protests against him as "anarchistic and delusional." He accused the demonstrators of "making a mockery of all the citizens of Israel who are supposed to maintain discipline. They’re a breeding ground for Corona and a breeding ground for anarchists."

To understand the current demonstrations, Ben-Noon goes back to the 2011 social justice protest. "That was a marginal protest, which not only failed to achieve its goals, but caused irreversible damage," he argues. "It laid the ground for increasingly violent protests. We’ve seen that already with the Ethiopian protest, which was violent and may have heralded the things we’re witnessing today, because the escalation processes continue usually for years."

Why did the 2011 protest fail?

"First of all, the protestors believed the government, which promised them that a committee would be set up to take action. That was the height of foolishness. Secondly, the 2011 protest had too many leaders, in the same way that there are too many leaders for the current protest. Protest leadership needs to be quite dictatorial. And the third thing: They didn’t have a uniform slogan. The problem is that there were about 1,500 slogans documented during the 2011 protest, which indicates a lack of unity. Usually, when that happens, you know the writing is on the wall."

According Ben-Noon, the current protest is also coming to an end. "The demonstrations won’t have any effect on Netanyahu at all," he says. "When you see how things are playing out today in exactly the same way, you realize that the outcome will be the same. Netanyahu hears the demonstrations in the evening, puts on loud music, and sits back and enjoys. Until we find ourselves with nothing left to lose, these luxury protests, with cups of tea and meals and good times, will go on."

Ben-Porat disagrees. "Whether or not the 2011 social protests ended in nothing is debatable," he says. "In my opinion, they did spark a public discourse of social justice and various other processes that may come to maturity further down the line. The goal of the current protest is very different: the dismissal of the prime minister. Usually, you can identify such moments, in which a protest is successful, or the regime against which it is aimed falls, only in retrospect. During the Arab Spring, for example, only very few believed Mubarak would fall, and democratic regimes tend to fall more slowly. The level of confidence in the government at the moment is very low, and the erosion of legitimacy can have unforeseeable consequences. The demonstrators feel they have the right to violate the regulations."

What response from authorities?

The question of how the prime minister will react to demonstrations calling for his ouster is no longer a theoretical one. "The prime minister has turned the finger of blame around, calling the demonstrators anarchists and accusing them of harming the country," says Ben-Noon. "His use of the word anarchists is improper and inaccurate, because anarchism at its core is a wonderful and impossible worldview. It’s wonderful because it holds that you and I don’t need a ruling authority to manage our personal lives. No one’s going to regulate what I produce, what I sell, or the things I have to say. I get along just fine and believe in people. The anarchists achieved world renown for their ideology for good reason, until an anarchist murdered the Austro-Hungarian archduke, Franz Ferdinand, and anarchy became tied to violence and disorder. These days, everyone’s convinced that anarchy means disorder, but they’re wrong. Anarchy, in fact, is designed to create a perfect order, in which people don’t have to pay a huge chunk of their income to some dysfunctional regulation. The use of the words ‘anarchy’ and ‘anarchists’ in Israel today is classic disinformation."

In a reality in which some sectors of society are doing exactly as they please, violating regulations and sometimes even breaking the law, a government’s ability to exercise restraint is a feature of a solid democracy, says Ben-Noon. "The government must understand the cause of civil uprising. It can say to the objectors: ‘Thanks very much for doing the work for me, now we can change a little. Not a dramatic change, but a change - because we want to keep democracy alive and because democracy here is important to me.’ And that’s actually the big question: Just how important is it to the government to preserve democracy here?"

Raz agrees with Ben-Noon regarding the importance of restraint on the part of the regime - but not always, and not at any price. "There’s the risk that civil uprising could erode trust in a government, and therefore, as justified as it may be, it could have serious negative consequences, as it could encourage certain people to break the law even unjustifiably," he says. "It could sometimes lead to grave dangers, which need to be weighed in earnest by the objectors when deciding how to achieve their objectives. Sometimes, these dangers can also justify a harsh response from the authorities, but in many cases, they call for a softer approach - a show of respect for the protesters and actions designed to prevent the escalation of the social conflict."

Raz explains how the involvement of citizens in politics could affect the government. "When political activities achieve their goals, it’s usually more down to the fact that the government or the public has succumbed to the pressure put on them by the protesters, and less so because they’ve been swayed by their arguments.

"Another point is that participation in political affairs via demonstrations, rallies and posts on social media adds an element of indispensability to people's lives and allows them to identify with their communities and the fate of other people. Political participation of this kind also allows us to help others, which boosts the self-esteem and pride of those who participate in it."

How will the justice system respond to manifestations of civil disobedience?

"The law enforcement system can’t deal with a violation of the law any differently," says Ben-Noon. "The moment someone breaks the law, the system isn’t interested in how pure their intentions were. Intentions could be addressed perhaps when it comes to sentencing."

Ben-Porat believes that, in the case of the ultra-Orthodox sector, the system needs to find the right way to respond. "When it comes to them, the system needs to find the most effective combination of the use of force and the granting of legitimacy. The ultra-Orthodox have, to a large extent, and for quite some time, viewed themselves as separate from the state. We’ve already seen their opposition to military service. Among the more militant ultra-Orthodox groups, civil disobedience is an almost daily occurrence. Nevertheless, I don’t support calls to punish them. Some of the ultra-Orthodox groups do comply with the laws of the state."

How have the police conducted themselves during the current crisis?

"The police were given a task they were destined to fail. The second lockdown was viewed by many as illegitimate; portions of the public saw it as a decree they could not and need not comply with. The police were thrown into the ring - and took a beating. During the demonstrations, the police seemed to be part of the political circle and were being used to do things that probably shouldn’t have been done. It’ll exact a high price in the long run. The police are already losing legitimacy. Without a commissioner, the police force also lacks leadership that can face up to the political echelon and is very weakened. Perhaps, and without being drawn into too many conspiracy theories, a weak police force and weak legal systems is a state of affairs that serves the current government."

What else is the government supposed to do, in addition to allowing political activity?

"Needless to say, the right to engage in political activity is not restricted only to those whose goals and positions fall in line with those of the government, or to activities the government approves," says Raz. "We must remain vigilant to ensure, therefore, that the permitted boundaries in terms of political activities do indeed protect the ethical right of people to be involved in such activity. If the law is too restrictive and limiting, the response to civil disobedience under certain conditions would have to be a change in the law, so that it includes those very activities that are currently defined as civil disobedience."

Is Israel’s democracy at risk?

"I have a friend on the right of the political spectrum who says we’ve been predicting the death of our democracy since 1977. There’s something to that, although we are seeing a certain deterioration in behavior and norms. I remind myself that the very democracy we’re constantly praising is far less wonderful for groups like Israel’s Arab citizens. At present, I don’t see an immediate threat to democracy, but there’s definitely been a change for the worse in the public discourse and the willingness of our elected officials to take responsibility."

Could the rift between the left and right deteriorate into civil war?

"I don’t see this happening. My gut feeling, which doesn’t rely on research, is that support for Netanyahu doesn’t stem from some sort of great love for the man, but more so from political solidarity and the sense that he is the most suitable leader at the moment. If he’s forced to go to jail, step down or retire, I don’t foresee a situation like the one we witnessed with Aryeh Deri, whose followers stuck with him and even set up a yeshiva outside the prison."