Symbolic laws, de facto abolitions and path dependence: When death penalty policies remain stable

Abstract

There is a growing tendency to perceive the death penalty as always ‘on the move’, often in a teleological trajectory inevitably leading to universal abolition. This article aims to question this tendency, noting that in many cases death penalty policies remain stable, especially in cases of de facto abolition. Such cases are overlooked in the literature, treated as brief interludes towards full abolition, though in fact they can be enduring and serve important symbolic functions. Informed by the historical-institutional approach, which rejects teleology in favour of path dependence and contingency, the article focuses on the Israeli case, where since 1967 the death penalty remained a lawful option in military courts with jurisdiction over Palestinians, but never applied. I argue that such remarkable stability is not due to inertia, but an unanticipated result of contingent events and processes leading over time to entrenchment of a ‘limbo’ arrangement, which constitute intentional, functional, policy.