It cannot be denied... that men fear death. The privation of life is indeed the supreme penalty and ought to excite in them a decisive fear. The fear of death, arising from the most obscure depths of the individual, ravages him; the instinct to live, when it is threatened, panics and struggles in agony. Therefore the legislator [is] right in thinking that his law [is] based upon one of the most mysterious and most powerful incentives of human nature. But law is always simpler than nature. When law ventures, in the hope of dominating, into the dark regions of consciousness, it has little chance of being able to simplify the complexity of what it wants to codify.
If fear of death is, indeed, a fact, another fact is that such fear, however great it may be, has never sufficed to quell human passions. Bacon is right in saying that there is no passion so weak that it cannot confront and overpower fear of death. Revenge, love, honor, pain, another fear manage to overcome it. How could cupidity, hatred, jealousy fail to do what love of a person or country, what a passion for freedom manage to do? For centuries the death penalty, often accompanied by barbarous refinements, has been trying to hold crime in check; yet crime persists. Why? Because the instincts that are warring in man are not, as the law claims, constant forces in a state of equilibrium. They are variable forces constantly waxing and waning, and their repeated lapses from equilibrium nourish the life of the mind as electrical oscillations, when close enough, set up a current. Just imagine a series of oscillations, from desire to lack of appetite, from decision to renunciation, through which each of us passes in a single day, multiply these variations infinitely, and you will have an idea of psychological proliferation. Such lapses from equilibrium are generally too fleeting to allow a single force to dominate a whole being. But it may happen that one of the soul's forces breaks loose until it fills the whole field of consciousness; at such a moment no instinct, not even that of life, can oppose the tyranny of that irresistible force. For capital punishment to be really intimidating, human nature would have to be different; it would have to be as stable and serene as the law itself. But then human nature would be dead.