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.[303] 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 practised 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

_long_ standing. 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.

Criminal Psychology: A Manual for Judges, Practitioners, and Students · 第 58 / 79 章