Since the publication of the Levin-Rothman program to clip the wings of the courts and of ministry legal advisers, Israeli society has been in an unprecedented tizzy. On Sunday, President Herzog floated his proposal for compromise and dialogue; but at present, there seems to be little enthusiasm for it. MK David Amsalem, who has been appointed a minister in the Justice Ministry, took the cake: “The revolution will pass by hook or by crook and despite all your protests.”
“The revolution will pass by hook or by crook and despite all your protests.”David Amsalem
Individual politicians have no clear interest in seeking a compromise that is liable to tag them as weak and inconsistent. Prime Minister Benjamin Netanyahu, Justice Minister Yariv Levin, and Simcha Rothman feel that because they have a guaranteed majority in the Knesset, they have no real reason to negotiate; while the leaders of the protest feel that discussing the changes would undermine their portrayal of the reform as a plot aimed at instituting a dictatorship.
In addition to all the reasons why it is better to reach agreements, with regard to the limits of government power, those who truly care about the good of the country have a special interest in endeavoring to achieve a broad consensus, and not only – as many maintain in the media – to avoid civil war or extreme violence (which are of course, horrific prospects). Ultimately, it is just as important to try to check the trivial and banal forms of “civil disobedience,” as it is to avoid the dramatic scenarios of tanks and blood in the streets.
The Israeli government depends on citizens' voluntary cooperation
From a behavioral perspective, democratic countries try to maintain their legitimacy among all their citizens, and not just among their political supporters, because they know that, in the end, with any other use of government power, the state would not enjoy the same level of cooperation from the public. Amsalem’s threats that he will throw anyone who breaks the law into jail, will not produce the cooperation the state needs from its citizens.
Research in this area consistently reveals that the state’s enforcement mechanisms cannot win the full support of a public that feels that the government’s actions, especially with regard to criticism of its power, are illegitimate.
Yes, the state can effectively enforce speed limits if it installs enough cameras along the roads. But it will be hard pressed to deal with many other traffic offenses that are no less dangerous. And yes, the state can readily collect the income tax payments that employers deduct from their workers’ salaries, but is at a loss when attempting to deal with the rampant tax evasion associated with the “cash economy” which is built upon “tax morale.”
With regard to protection of the environment, a state that wishes to enlist its citizens’ cooperation in the fight against climate change, cannot succeed only by means of coercive measures. Without citizens’ willingness to cooperate, it is extremely difficult to force people to recycle or change how they get from place to place.
In a sense, the repeal of the tax on disposable utensils as a result of the resistance by the ultra-Orthodox, is another indicator of the fact that, in order to win citizens’ voluntary compliance, the state needed to make the tax legitimate by explaining the problems that disposables cause. COVID, too, which may not be totally behind us, taught us a lesson as to the extent to which the government depends on voluntary public cooperation.
VARIOUS STUDIES have found a correlation between political identification with a country’s leader and the vaccination rate, and between the relations between the opposition and the coalition, and public compliance with pandemic regulations. At the height of the pandemic, police enforcement focused on less dangerous locations, such as open spaces, and was totally ineffective when it came to the mass contagion spread in closed spaces.
Finally, in the Israeli context, perhaps the most salient example, is that of military service, both compulsory service and reserve duty. In the end, despite all the legal options and powers available to the state, many of those subject to conscription, and even more so, to reserve duty, evade it. And the military is also not anxious to take in individuals who show up only because they are forced to do so, especially not in units that demand personal sacrifice.
It is important to understand that in the final analysis, coercive regulations and enforcement, especially in democratic countries, have a more limited reach than governments are prepared to admit.
A coalition must consider what works best in its favor; a hands-down victory, that is, unilateral reform of the entire package, or the reform of specific sections – by consensus. Those who care about the good of the country perceive the great advantage of a partial reform achieved by consensus, which as a result, enjoys greater legitimacy in the eyes of the public.
The reason, of course, is not necessarily the fear of outright and disruptive forms of civil disobedience, such as blocking roads, which most people are unlikely to engage in, and which the enforcement agencies can easily identify. No, it is the banal civil disobedience manifested in a gradual decline in social capital and public cooperation on various matters that are essential for Israeli society to function, and which the powers-that-be would find harder to identify and change.
Cooperation by the public at large with the country’s laws and in dealing with its challenges, can be achieved only by safeguarding the government’s legitimacy. This is especially the case on issues which go to the very heart of democratic legitimacy i.e., the government’s willingness to recognize the limits of its power and the supremacy of the law. Refraining from exploiting power and working toward consensus would help prevent the collapse of the public’s cooperation and its goodwill in addressing the challenges that confront Israeli society.
The writer is a senior fellow at the Israel Democracy Institute and a researcher in the Faculty of Law at Bar-Ilan University.