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Foolishness in action is rawnesstrue rawness is always foolish and can not be mistaken。
Here； again； we draw the extraordinary conclusion that we criminalists； as in all other cases； must not take man to be what he seems most of the time； but what he shows himself as； in exceptional cases。 The worst man may have done something absolutely good； the greatest liar may today tell the truth； and the simpleton may today act wisely。 We are not concerned with man as such； what is important for us is his immediate self…expression。 The rest of his nature is a matter of judgment。
Topic 2。 ISOLATED INFLUENCES。
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 childrenhe 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。
＇1＇ H。 Gross's Archiv。 II； 140； III； 350； VII； 155； XIII； 161； XIV； 189。
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。
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