What Is in a Habit?

Rodney, Michael

doi:10.1007/978-94-007-4830-9_10

Michael Rodney³

Part of the book series: Law and Philosophy Library ((LAPS,volume 103))

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Abstract

Lying at the centre of Austin’s model of sovereignty was the idea of habitual obedience to the commands attributed to the sovereign. In Hart’s rejection of Austin’s model and his development of the internal point of view to explain adherence to legal rules, the qualities that he associated with the term ‘habit’ comprised those of the regularity of behaviour and predictability of conduct which were unreflective, effortless or engrained. The purpose of the chapter is to revisit this controversy. Firstly, it reveals the important place of habit in explanations of human existence found in the writings of philosophers, psychologists and sociologists. Secondly, to highlight that importance, the dramatic consequences that are likely to follow an acute withdrawal of familiar repetitive practices are considered. Thirdly, by way of appropriate examples, it suggests that the relationship between habit and rule following is a complex one and that the former is present in the operation of the latter even where legal officials are concerned. Fourthly, it returns to Hart’s critique of Austin. It suggests that Austin’s writings are more compatible with a subtler position concerning habit than that of Hart’s and that the latter’s dissociation of the critically reflective stance from habit in the context of the operation of the internal point of view is not credibly sustainable. The chapter concludes by suggesting that there has been a lack of appreciation in legal theory that needs to be corrected of the pervasive role of habit in the operation of the law.

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Notes

1.
John Austin, The Province of Jurisprudence Determined ed. by Wilfrid E. Rumble (Cambridge: Cambridge University Press, 1995) [first published, 1832] at 166.
2.
Ibid. at 166.
3.
Herbert L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).
4.
Hans Kelsen, General theory of Law and State, trans. by Anders Wedberg (first published by Cambridge, MA: Harvard University Press, 1945; Repr. Union, NJ: The Lawbook Exchange, 1999) at 119.
5.
Philip Pettit, “How Norms Become Normative” in The Hart-Fuller Debate in the Twenty-First Century ed. by Peter Cane (Oxford: Hart Publishing, 2010) at 230.
6.
Lon L. Fuller, “Human Interaction and the Law” in The Rule of Law ed. by Robert Paul Wolff (New York: Simon and Schuster, 1971) at 201.
7.
David Easton, “A Re-Assessment of the Concept of Political Support” (1975) 5 British Journal of Political Science 185.
8.
Hart, Concept of Law, supra note 3 at 51.
9.
Ibid. at 54.
10.
Ibid. at 54.
11.
Ibid.
12.
Ibid. at 55.
13.
Ibid.
14.
Ibid.
15.
Ibid.
16.
Ibid. at 56.
17.
This will include reference to associated terms in particular those of routine and habitus.
18.
Sigmund Freud, The Psychopathology of Everyday Life, Vol. 6 in The Standard Edition of the Complete Works of Sigmund Freud ed. and trans by James Strachey (London: Vintage, 2001) at 194.
19.
Aspects of its coverage in philosophy and sociology have been usefully covered by Clare Carlisle and Charles Camic. See Clare Carlisle, “Creatures of Habit: The Problem and Practice of Liberation” (2006) 38 Continental Philosophy Review 19; Clare Carlisle, “Between Freedom and Necessity: Felix Ravaisson on Habit and the Moral Life” (2010) 53(2) Inquiry, at 123; Charles Camic, “The Matter of Habit” (1986) 91(5) The American Journal of Sociology 1039.
20.
Bertrand Russell, History of Western Philosophy (New York: Routledge, 1961) at 185, cf. at 193.
21.
Thomas Aquinas, Summa Theologiæ, trans. by Joseph Rickaby, (London: Burns and Oates, 1892), quest. 61 “Of The Cardinal Virtues”; Elizabeth Karger, “Ockham’s Misunderstood Theory of Intuitive and Abstractive Cognition” in The Cambridge Companion to Ockham ed. by Paul Vincent Spade (Cambridge: Cambridge University Press, 1999) at 206.
22.
David Hume, A Treaties of Human Nature ed. by Lewis Amherst Selby-Bigge (Oxford: Clarendon, 1978) at 118.
23.
David Hume, Enquiry Concerning Human Understanding ed. by Lewis Amherst Selby-Bigge (Oxford: Clarendon, 1975) at 44.
24.
Immanuel Kant, Anthropology from a Pragmatic Point of View trans. by Mary J. Gregor (The Hague: Martinus Nijhoff, 1974) at 148–149.
25.
Georg W. F. Hegel, Philosophy of Right trans. by Thomas Malcolm Knox (Oxford: Oxford University Press, 1967) at 108 (151), cf. at 260 (151).
26.
Georg W. F. Hegel, Philosophy of Mind trans. by William Wallace and Arnold V. Miller (Oxford: Clarendon, 1971) at 143.
27.
Simon Lumsden, “Habit, Reason and the Limits of Normativity” (2008) 37(3) SubStance at 188, cf. at 200.
28.
Friedrich Nietzsche, The Gay Science ed. by Bernard Williams (Cambridge: Cambridge University Press, 2001) at 168.
29.
John Dewey, Human Nature and Conduct (New York: Holt, 1945) at 40–41. He contrasted “habit” with physiological functions as the former was acquired: cf. at 15.
30.
Ibid. at 38.
31.
John Dewey, Experience and Nature (New York: Norton and Co, 1925) at 281.
32.
Ibid. at 281.
33.
Maurice Merleau-Ponty, Phenomenology of Perception (London: Routledge, 1962) at 91.
34.
Nick Crossley, The Social Body (London: Sage Publications, 2001) at 89.
35.
Merleau-Ponty, Phenomenology of Perception, supra note 33 at 143.
36.
This sense of possessing a “feel for the game” emerges clearly in the writings of the sociologist Pierre Bourdieu in his development of the idea of habitus: See infra.
37.
Merleau-Ponty, Phenomenology of Perception, supra note 33 at 143.
38.
Gilles Deleuze, Empiricism and Subjectivity. An Essay on Hume’s Theory of Human Nature trans. by Constantin V. Boundas (New York: Columbia University Press, 1991), cf. at 66.
39.
Andrew M. Coleman, Dictionary of Psychology (3rd ed., Oxford: Oxford University Press, 2009) at 330.
40.
John B. Watson, “Psychology As the Behaviourist Views It” in A History of Modern Psychology ed. by Duane Schultz (2nd ed., New York: Academic Press, 1975) at 199–207, referred to in Camic, “The Matter of Habit” supra note 19 at 1068.
41.
Camic, “The Matter of Habit” supra note 19 at 1076–1077.
42.
Burrhus Frederic Skinner, “Why I Am Not a Cognitive Psychologist” in Reflections on Behaviourism and Society ed. by Burrhus Frederic Skinner (Englewood Cliffs, NJ: Prentice-Hall, 1978) at 97–112, referred to in John A. Bargh, “The Automaticity of Everyday Life” in Advances in Social Cognition ed. by Robert S. Wyer (Hillsdale, NJ: Erlbaum, 1997) vol. X, at 12.
43.
Ibid. at 52.
44.
Such writings include Peter Berger and Thomas Luckmann, The Social Construction of Reality (London: Penguin Books, 1966); Anthony Giddens, The Constitution of Society (Cambridge: Polity Press, 1984) and Crossley, The Social Body, supra note 34.
45.
Emil Durkheim, The Division of Labour in Society trans. by George Simpson (New York: Free Press, 1964) at 242.
46.
Emil Durkheim, “Marxism and Sociology: The Materialist Conception of History” [first published 1897] now in The Rules of Sociology of Method ed. by Steven Lukes (New York: Free Press, 1982) at 167–174.
47.
Camic, “The Matter of Habit” supra note 19 at 1039 and 1052.
48.
Emil Durkheim, Pragmatism and Sociology [first published 1913–14] ed. by John B. Allcock (Cambridge: Cambridge University Press, 1983) at 38, see also at 79 and 83.
49.
Emil Durkheim, “The Evolution and the Role of Secondary Education in France” [first published 1905–6] in Education and Sociology, trans. by Sherwood D. Fox (New York: Free Press, 1956) at 152.
50.
Emil Durkheim, Moral Education [first published 1902–3] trans. by Everett K. Wilson and Hermann Schurer (New York: Free Press, 1961) at 233.
51.
Ibid. at 135, 143, 149, 249 and 297.
52.
Emil Durkheim, The Evolution of Educational Thought [first published 1904–5] trans. by Peter Collins (London: Routledge, 1977) at 28–29; Durkheim, Moral Education, supra note 50 at 2.
53.
Max Weber, “Zur Psychophysik der industriellen Arbeit” [first published 1908–9] now in Gesammelte Aufsatze zur Soziologie und Sozialpolitik (Tübingen: Mohr/Siebeck, 1924) at 61, cf. at 93–94 cited in Camic, “The Matter of Habit” supra note 19 at 1057.
54.
Max Weber, Economy and Society ed. by Günther Roth and Claus Wittich (Berkeley: University of California Press, 1978) at 335; Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. by Talcott Parsons (London: Routledge, 1992) at 62.
55.
Weber, Economy and Society, supra note 54 at 335; Weber, The Protestant Ethic, supra note 54 at 53.
56.
Weber, Economy and Society, supra note 54 at 731, cf. at 1156.
57.
Ibid. at 1152.
58.
Ibid. at 312. This analysis is not inconsistent with Hart’s with regard to members of a population who are not engaged in activities associated with legal officials.
59.
Ibid. at 326, cf. at 754. Durkheim in similar terms considered that habitual practice was capable of being transformed into rules of conduct: Durkheim, The Division of Labour in Society, supra note 45; quote from Steven Lukes, Emile Durkheim – His Life and Work (London: Penguin Books, 1973) at 164.
60.
Weber, Economy and Society, supra note 54 at 25, cf. at 337.
61.
Berger and Luckmann, The Social Construction of Reality, supra note 44; Giddens, The Constitution, supra note 44.
62.
Berger and Luckmann, The Social Construction of Reality, supra note 44 at 65–66.
63.
The phrase “ontological security” can be traced to the writings of the psychoanalyst Ronald David Laing and it features in the writings of the sociologist Anthony Giddens. The latter defines it as the “confidence or trust that the natural and social worlds are as they appear to be, including the basic existential parameters of self and social identity” in Giddens, The Constitution, supra note 44 at 375.
64.
Peter Fitzpatrick, Mythology of Law (London: Routledge, 1992) at 19. For example, the Pelgasian Creation Myth whose first sentence reads, “in the beginning, Eurynome, the Goddess of All Things, rose naked from Chaos but found nothing substantial for her feet to rest upon, and therefore divided the seas from the sky.” See Robert Graves, the Greek Myths (London: Penguin Books, 1960) vol. 1 at 27–35. Another example of this point is Nietzsche’s claim that “behind his very ground, beneath his every grounding” upon which philosophers construct their philosophies lurks “an abyss.” See Friedrich Nietzsche, Beyond Good and Evil trans. by Marion Faber (Oxford: Oxford University Press, 1988) at 289, cf. at 173.
65.
Ernst Cassirer, Logic of the Humanities trans. by Clarence S. Howe (New Haven, CN: Yale University Press, 1961) at 42; Gilles Deleuze and Félix Guattari, What Is Philosophy? (London: Verso, 1994) at 51.
66.
Jürgen Habermas, The Liberating Power of Symbols (Cambridge: Polity Press 2001) at 24. Habermas in this area recognised the important contribution of Ernst Cassirer who authored four published volumes on the nature, role and manifestations of symbolic forms the most pervasive of which was language. See Ernst Cassirer, The Philosophy of Symbolic Forms (New Haven, CN: Yale University Press) Volume 1 Language (1953); Volume 2 Mythical Thought (1955); Volume 3 The Phenomenology of Knowledge (1957) and Volume 4 The Metaphysics of Symbolic Forms (1996). Reflecting the crucial nature of these symbolic forms for the possibility of meaningful human experience in Cassirer’s view, he proclaimed in the fourth volume that “the negation or annihilation of the symbolic form, in order to return to life as something immediate would be (…) simultaneously to kill the mind itself” (at 231). Nelson Goodman’s notion of “world-making” has much in common with Cassirer’s approach. See Nelson Goodman, Ways of Worldmaking (Indianapolis: Hackett Publishing Co., 1978).
67.
Difference is therefore overlooked in the act of making sense of the world. This is captured by Nietzsche who states that “[e]very word (…) becomes an idea when rather than serving as a kind of reminder of the unique, entirely individualized first experience to which it owes its origin, it simultaneously must fit innumerable, more or less similar (which really means never equal and therefore altogether unequal) cases.” See Friedrich Nietzsche, “On Truth and Falsity in Their Extramoral Sense” in Friedrich Nietzsche Philosophical Writings ed. by Reinhold Gimm and Caroline Molina y Vedia (New York: Continuum, 1997) at 91.
68.
Berger and Luckmann, The Social Construction of Reality, supra note 44 at 70–71.
69.
Ibid. at 65–66, cf. at 70; Merleau-Ponty, Phenomenology of Perception, supra note 33 at 146.
70.
Berger and Luckmann refer to the example of building a canoe which might be achieved in a multitude of ways that through habitualisation is repeatedly undertaken in one way only. See Berger and Luckmann, The Social Construction of Reality, supra note 44 at 71. There is a similarity between these observations and those by Nietzsche and Durkheim. See supra.
71.
Berger and Luckmann, The Social Construction of Reality, supra note 44 at 71. The idea of background plays an important part in the conceptualisation of the embedded agent which will be briefly explored below in the section of the paper where observations are made about the qualities associated with habit.
72.
Giddens, The Constitution, supra note 44 at 376. By the term activity both mental and physical acts are included. Others, for example John Dewey, have also referred to the routinisation of much daily life. See also John Dewey, Human Nature and Conduct (New York: Cosimo Classics, 2007).
73.
Giddens, The Constitution, supra note 44 at 64.
74.
Ibid. at 44 and Stephen Toulmin, “The genealogy of ‘consciousness’” in Explaining Human Behaviour: Consciousness, Human Action and Social Structure ed. by Paul F. Secord (Beverly Hills: Sage, 1982).
75.
Ibid. at 44.
76.
Edmund Husserl, Cartesian Meditations (Dordrecht: Kluwer, 1991) at 67; Edmund Husserl, Cartesian Meditations (Evanston: North Western University Press, 1973) at 122–123.
77.
Durkheim, Moral Education, supra note 50 and Weber, Economy and Society, supra note 54.
78.
Coleman, Oxford Dictionary of Psychology, supra note 34 at 330.
79.
Carlisle, “Creatures of Habit” supra note 19 at 21.
80.
Camic, “The Matter of Habit” supra note 19 at 1046. Other theorists who described something similar to habitus include Aristotle, Aquinas, Husserl and, Elias.
81.
Pierre Bourdieu, The Logic of Practice trans. by Richard Nice (Palo Alto, CA: Stanford University Press, 1990) at 53; See also Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977) at 81–82.
82.
Bourdieu, The Logic of Practice, supra note 81 at 53.
83.
Bourdieu, Outline of a Theory of Practice, supra note 81 at 214.
84.
Pierre Bourdieu and Loïc J. D. Wacquant, An Invitation to Reflexive Sociology (Cambridge: Polity Press, 1992) at 133; Bourdieu, Outline of a Theory of Practice, supra note 81 at 82.
85.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 127; Pierre Bourdieu, Distinctions trans. by Richard Nice (London: Routledge, 2010) at 468.
86.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 126.
87.
Pierre Bourdieu, “The Genesis of the Concepts of Habitus and of Field” (1985) 2(2) Sociocriticism 11, at 14; Giddens, The Constitution, supra note 44 at 3; Steven Loyal, The Sociology of Anthony Giddens (London: Pluto Press, 2003) at 53.
88.
The field may be conceptualised in a number of ways but, put simply, it denotes particular socially structured spaces such as that of law or that of the arts or of education or politics and so on, and each, to use the analogy of the magnet, exerts a force upon individuals within them as to the acceptable ways of operating of which such individuals are not likely to be conscious.
89.
Ludwig Wittgenstein, Philosophical Investigations trans. by Elizabeth Anscombe (3rd ed, Oxford: Blackwell, 1967).
90.
Ibid. at 201.
91.
Bettelheim’s account was based on his internment in 1938–9, that is three years before the policy of mass extermination was instituted. See Bruno Bettelheim, The Informed Heart (New York: Free Press, 1960) at 109.
92.
Ibid. at 148.
93.
It was known for the prisoners to be subjected to alternating regimes of comparatively privileged conditions comprising good quarters and easy work followed by harsh ones of hard labour and reductions in food rations leading to appalling mortality rates. Ibid. at 150–151.
94.
Ibid. at 108.
95.
Ibid. at 108, cf. at 149.
96.
Bettelheim, The Informed Heart, supra note 91 at 151. These were known in camp slang as “musellmanner” or “musellman” in the singular. See http://www.holocaustcenterbuff.com/vocabulary.htm#m (last accessed on 10 August 2011).
97.
Bettelheim, The Informed Heart, supra note 91 at 151–152. Prisoners could significantly increase their likelihood of survival by ensuing control of some significant aspect of their lives through the continuation of routines in the face of daily encountered brutality. This is also brought out by other concentration camp survivors such as Primo Levi.
98.
Ibid. at 142. Primo Levi, for example in his autobiographical account of concentration camp life referred to the importance of maintaining the routine of daily washing to maximising one’s chances of survival in an environment where there were no predictable social routines of a tolerable nature. See Primo Levi, If This Is a Man (London: Abacus, 1987) at 45–47.
99.
Shamai Davidson, “Human Reciprocity Among Jewish Prisoners in the Nazi Concentration Camps” in The Nazi Concentration Camps – Structure and Aims, the Image of the Prisoner, the Jews in the Camps: Proceedings of the Fourth Yad Vashem International Historical Conference ed. by Yisrael Gutman and Avital Saf (Jerusalem: Yad Vashem, 1984) at 555.
100.
Bourdieu, The Logic of Practice, supra note 81 at 53.
101.
Bourdieu referred to the habitus of an individual being out of touch with the social environment it found itself in as the hysteresis of the habitus: Bourdieu, Outline of a Theory of Practice, supra note 81 at 83.
102.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 127. Bourdieu describes this state as being like “a fish in water.”
103.
Crossley, The Social Body, supra note 34 at 129.
104.
I have not included within this categorisation of habit, repetitive activities that are repetitive in quality where there is little if any variation or discernible purpose to the individual involved, that may not be triggered by specific circumstances and in respect of which he may not beware of undertaking it. See Freud, The Psychopathology of Everyday, supra note 18 at 194.
105.
Maurice Merleau-Ponty, The Visible and the Invisible (Evanston: Northwestern University Press, 1968) at 123.
106.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 127–8.
107.
Charles Taylor, Philosophical Arguments (Cambridge, MA: Harvard University Press, 1997) at 64–66. Others include Husserl, Heidegger and Wittgenstein in his later writings,
108.
Martin C. Dillon, Merleau-Ponty’s Ontology (2nd ed., Evanston: Northwestern University Press, 1997) at 90; See Concise Routledge Encyclopaedia of Philosophy (London: Routledge, 2000) at 922.
109.
Taylor, Philosophical Arguments, supra note 107 at 73.
110.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 131.
111.
Pierre Bourdieu, In Other Words: Essays Towards Reflexive Sociology trans. by Matthew Adamson (Cambridge: Polity Press, 1990) at 13.
112.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 126.
113.
Crossley, The Social Body, supra note 34 at 134.
114.
Wittgenstein, Philosophical Investigations, supra note 89 at 202. Reflecting this, it is possible to have someone who thinks they are complying with a rule when they are not in fact doing so in that their behaviour is not considered to amount to compliance with it and conceivably someone who is doubtful that they are in fact doing so is in fact complying with it.
115.
Hubert L. Dreyfus and Stuart E. Dreyfus, “The Challenge of Merleau-Ponty’s Phenomenology of Embodiment for Cognitive Science” in Perspectives on Embodiment ed. by Gam Weiss and Honi Fern Haber (London: Routledge, 1999) at 105–110.
116.
Mark A. Wrathall, “The Phenomenology of Rules” in Reading Merleau-Ponty ed. by Thomas Baldwin (London: Routledge, 2007) at 78.
117.
The phrases “known unknowns” and “unknown unknowns” are commonly associated with Donald Rumsfeld, former US Secretary of Defence and were expressed by him at a press briefing on 12th of February 2002. The term “unknown unknowns” suggests circumstances of which an individual is unaware and is not aware that he is unaware of them. However that does not prevent him from experience the anxiety provoking situation of being aware in general terms that there may be circumstances of which he will be unaware and that he will not be aware of being unaware of them.
118.
Bourdieu and Wacquant, An Invitation to Reflexive Sociology, supra note 84 at 128.
119.
Marc Galanter, “Why the ‘haves’ come out ahead: speculations on the limits of legal change” (1974) 9 Law and Society Review 95–160.
120.
The application of relevant law by experienced personal injury litigators is surprisingly limited. See James Marshall, “Are Small-Town Lawyers Positivists About the Law?” in Law and Sociology ed. by Michael Freeman (Oxford: Oxford University Press, 2006) at 290.
121.
Hubert L. Dreyfus and Stuart E. Dreyfus, “The Challenge of Merleau-Ponty’s Phenomenology” supra note 115 at 109.
122.
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, CN: Yale University Press, 1921) at 2.
123.
Ibid.
124.
Bourdieu, Distinctions, supra note 85 at 468.
125.
Cardozo, The Nature of the Judicial Process, supra note 122 at 5.
126.
Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field” (1986–1987) 38 The Hastings Law Journal 814, cf. at 820.
127.
Ibid. at 830.
128.
This would amount in the language of Bourdieu as an expression of “hysteresis” See supra note 101.
129.
Austin, Province, supra note 1 at 166.
130.
Ibid. at 167.
131.
Hart, Concept of Law, supra note 3 at 113.
132.
Ibid. at 113.
133.
Ibid. at 112.
134.
See supra 10.5.
135.
As for example Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986).

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Law School, UCL, Bentham House, Endsleigh Gardens, London, WC1 0EG, United Kingdom
Michael Freeman
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Patricia Mindus

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Rodney, M. (2013). What Is in a Habit?. In: Freeman, M., Mindus, P. (eds) The Legacy of John Austin's Jurisprudence. Law and Philosophy Library, vol 103. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4830-9_10

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