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.