Section 91. (a) Habit.
Habit may be of considerable importance in criminal law. We
have, first of all, to know how far we ourselves are influenced
in our thinking and acting by habit; then it is important, in judging
the testimony of witnesses, to know whether and how far the witness
behaved according to his habits. For by means of this knowledge
we may be able to see the likelihood of many a thing that might have
otherwise seemed improbable. Finally, we may be able properly to
estimate many an excuse offered by a defendant through considering
his habits, especially when we are dealing with events that are
supposed to have occurred under stupefaction, absolute intoxication,
distraction, etc.[1] Hume, indeed, has
assigned to habit the maximum
of significance; his whole system depends upon the use of habit as
a principle of explanation. He shows that the essence of all our
inferences with regard to facts relates to the principle of causation,
and the foundation of all our beliefs in causation is experience, while
the foundation of inference from experience is habit. As a matter
of fact, it is strange how often an obscure event becomes suddenly
clear by an inquiry into the possibility of habit as its cause. Even
everything we call fashion, custom, presumption, is at bottom
nothing more than habit, or explicable by habit. All new fashions
in clothes, in usages, etc., are disliked until one becomes habituated
to them, and custom and morality must attach themselves to the
iron law of habit. What would my grandmother have said of a
woman whom she might have seen happily bicycling through the
streets! How every German citizen crosses himself when he sees
French sea-bathing! And if we had no idea of a ball among the
four hundred what should we say if we heard that in the evening
men meet half-naked women, embrace them vigorously, pull them
round, and bob and stamp through the hall with disgusting noise
until they must stop, pouring perspiration, gasping for breath?
But because we are accustomed to it, we are satisfied with it. To
see what influence habit has on our views of this subject, just close
your ears tightly at some ball and watch the dancers. As soon as
you stop hearing the music you think you are in a lunatic asylum.
Indeed, you do not need to select such a really foolish case. Helmholtz
suggests looking at a man walking in the distance, through
the large end of a telescope. What extraordinary humping and
rocking of the body the passer-by exhibits! There are any number
of such examples, and if we inquire concerning the permissibility of
certain events we simply carry the question of habit into the field
of conduct. Hunting harmless animals, vivisection, the execution of
back-breaking tricks, ballets, and numerous other things, will seem
to us shocking, inconceivable, disgusting, if we are not habituated to
them. What here requires thought is the fact that we criminalists
often judge situations we do not know. When the peasant, the
unskilled laborer, or the craftsman, does anything, we know only
superficially the deed's nature and real status. We have, as a rule,
no knowledge of the perpetrator's habits, and when we regard some
one of his actions as most reprehensible,—quarrel or insult or
maltreatment of his wife or children—he responds to us with a most
astounded expression. He is not habituated to anything else, and
we do not teach him a better way by punishing him.
Questions of this sort, however, deal with the generality of human
nature, and do not directly concern us. But directly we are required
to make a correct judgment of testimony concerning habit, they
will help us to more just interpretations and will reduce the number
of crass contradictions. This is so because many an assertion will
seem probable when the witness shows that the thing described was
habitual. No definite boundary can be drawn between skill and
habit, and we may, perhaps, say rightly, that skill is possible only
where habit exists, and habit is present where a certain amount of
skill has been attained. Skill, generally, is the capacity of speedy
habituation. But a distinction must be drawn. Habit makes actions
easy. Habituation makes them necessary. This is most obvious
in cases of bodily skill,—riding, swimming, skating, cycling,—
everything in which habit and skill can not be separated, and with
regard to which we can not see why we and other untrained people
can not immediately do the same thing. And when we can do it,
we do it without thinking, as if half asleep. Such action is not
skilled, but habitual, i. e., a part of it is determined by the body
itself without the especial guidance of the mind.
We find the hunter's power to see so many animals, tracks, etc.,
inconceivable. When, e. g., we have once properly mastered the
principle of a quite complicated crystal, we cannot understand why
we had not done so before. We feel in the same way with regard
to an unclear drawing, a new road, some bodily activity, etc. Anybody
who has not acquired the habit might have to take all day
to learn the business of dressing and undressing himself. And
how difficult it is just to walk, a thing we do unconsciously, is confirmed
by the mechanic who wants to construct a walking figure.
That all people are equally subject to habit, is not asserted.
The thing is a matter of disposition, in the sense of the recurrence
of past ideas or tendencies. We must assume that an inclination
evinced by idea A makes possible ideas a', a", a"'. Habits may
develop according to these dispositions, but the knowledge of the
conditions of this development we do not yet possess. Nevertheless,
we tend to assume that the famous historian X and the famous
Countess Y will not get the habit of drinking or opium-smoking—
but in this case our assumption is deduced from their circumstances,
and not from their personality. Hence, it is difficult to say with
certainty that a person is incapable of acquiring this or that habit.
So that it is of importance, when the question arises, to discover
the existence of implied habits whenever these are asserted in the
face of apparently contradictory conditions. There is a certain
presumption for the correctness of the implication, when, e. g.,
the practiced physician asserts that he counted the pulse for a
minute without a watch, or when the merchant accurately estimates
the weight of goods within a few grams, etc. But it will be just
as well to test the assertion, since, without this test, the possibility
of error is still great.
Somebody asserts, e. g., that he had been distracted and had
paid no attention to what two persons close to him had said. Suddenly
he began to take notice and found himself able to recapitulate
all their remarks. Or again, a musician, who is almost altogether
deaf, says that he is so accustomed to music that in spite of his
deafness he is able to hear the smallest discord in the orchestra.
Yet again, we hear of insignificant, hardly controllable habits that
become accidentally significant in a criminal case. Thus the crime
of arson was observed by the firebrand's neighbor, who could have
seen the action through the window, only if he had leaned far out
of it. When he was asked what he wanted to see in the cold winter
night, he replied, that he had the habit daily of spitting out of the
window just before going to bed. Another, who was surprised in his
sleep by an entering thief, had heavily wounded the latter with a
great brush, "because he happened to have had it in his hand."
The happening was due to his habit of being unable to fall asleep
without a brush in his hand. If such habits are demonstrable facts
they serve to explain otherwise unexplainable events.
They are, however, the more difficult to establish, because they
occur mainly in isolated people—old bachelors and old maids—
so that their confirmation by others is rare. On the other hand,
every one of us knows habits of his own or of his friends which
would not be believed when cited, and which would be very difficult
to prove when the need arose. The influence of habit on indifferent
matters can be shown by numerous examples. There is Kant's
citation, that if anybody happened to send his doctor nine ducats
the latter would have to believe that the messenger had stolen the
tenth. If you give a bride most beautiful linen, but only eleven
pieces, she will weep. Give her thirteen pieces, and she will certainly
throw one of them away. If you keep these deep-rooted habits in
mind, you may possibly say that they must have had a definite,
determinative, and alternative influence on body and mind. For
example, from time immemorial mankind has taken medications
at definite intervals, e. g., every hour, every two hours, etc.; hence,
a powder ordered every seventy-seven minutes will cause us complete
surprise. But by what authority does the body require exactly
these quantities of time or weight? Or again, our lectures, private
or public, so and so much time? Of course it would be inconvenient
if professors lectured only 52 minutes, yet how much difficulty
must not the mind have met in becoming habituated to exactly
60 minutes of instruction! This habituation has been going on for
a long time, and now children, like nations, regard the new in the
light of the old, so that the old, especially when it is fixed by language,
becomes the mind's instrument for the control of the new. Indeed
we often stick linguistically to old things, although they have been
long superannuated.
There is the characteristic state of mind which might be called
the refraction of an idea by the presence of another idea. An example
is the habit of saying, "Unprepared, as I have—" before beginning
a speech. The speaker means to say that he has not prepared himself,
but, as he really has prepared himself, both expressions come out
together. This habitual concurrence of the real thought is of importance,
and offers, frequently, the opportunity of correcting what
is said by what is thought. This process is similar to that in which a
gesture contradicts a statement. We often hear: "I had to take
it because it was right there." This assertion indicates theft through
need, and at the same time, theft through opportunity. Or again,
we hear: "We had not agreed, before"—this assertion denies
agreement and can indicate merely, because of the added "before,"
that the agreement was not of
already
longstanding. Still again, we
hear, "When we fell to the floor, I defended myself, and struck down
at him." Here what is asserted is self-defense, and what is admitted
is that the enemy was underneath the speaker. Such refractions
of thought occur frequently and are very important, particularly
in witnesses who exaggerate or do not tell the whole truth. They
are, however, rarely noticed because they require accurate observation
of each word and that requires time, and our time has no time.
[[ id="n91.1"]]
H. Gross's Archiv. II, 140; III, 350; VII, 155; XIII, 161; XIV, 189.