【中英雙語】13法學(xué)專業(yè)外文文獻(xiàn)翻譯成品：對刑法動(dòng)機(jī)的挑戰(zhàn)

1、外文標(biāo)題：The Challenge of Motive in the Criminal Law外文作者：Elaine M. Chiut文獻(xiàn)出處：《Buffalo Criminal Law Review》 , 2005 , 8 (2) :653-729英文3187單詞，15897字符，中文5194漢字。此文檔是外文翻譯成品，無需調(diào)整復(fù)雜的格式哦！下載之后直接可 用，方便快捷！The Challenge of Motive in the

2、 Criminal LawElaine M. ChiutPart I of the article joins the evolving discussion of motive in the criminal law generally. To support the overall conclusion that motive should figure more prominently in the criminal law, p

3、art I proposes several novel ideas. First, although some other scholars are fixated with whether motive should be limited to determinations of either liability or punishment, this article proposes that decision makers sh

4、ould be free to consider motive when determining both. Second, part I explains that not all motives are the same. Indeed, motives such as selfdefense, insanity, and heat of passion clearly differ in terms of their provab

5、ility and moral potency. While some may be more easily proven, others possess greater moral potency. Because of these critical differences, part I of this article proposes that motives which are easily proven and possess

6、 high moral potency be part of liability determinations while motives that present proof problems or low moral potency be restricted to sentencing. Third, part I ends with a sweeping recommendation to reform the overall

7、attitude about motive in the criminal law. Far from being irrelevant to the criminal law and unworkable, motive should be thought of as essential. The criminal law should not limit itself to consideration of a few select

8、 motives; instead, it should welcome the challenge of incorporating defendants，various motives. With the freedom of multiple forums and the guidelines of provability and moral potency, an effective criminal law built aro

9、und motive can be successfully developed.Part II then turns to the simple street sale and New York’s agency defense and the intriguing lesson they offer for considerations of motive in the criminal law. Part II begins by

10、 analyzing the challenge of defining the offenses and punishments for various participants in the simple street sale and how the agency defense was designed to address this challenge. It continues with the history of how

11、 federal courts led state courts in the adoption of the judicially created agency defense and how Congress then eliminated it by statute in adopting the distribution approach to the war on drugs. In conclusion, part II d

12、escribes instances of legal inconsistency criminal liability while the other is central to it.4In this debate on motive numerous efforts have been made to define it. These efforts divide into three groups. Some have defi

13、ned motive as completely different from intent while others have argued that motive is a particular type or sub-category of intent. Still others, like Douglas Husak, have offered more functional definitions. The first gr

14、oup regards intentions as “cognitive states of mind, like expectations or perceptions of risk” while describing motives as “desiderative states， ， ，meaning “desires，purposes or ends/524 In other words, “motives explain w

15、hy a person acted，while intentions describe what action was p e r f o r m e d . ， ， 5While appealingly simple, this definition renders the maxim of irrelevance untrue.6 It is untrue that the criminal law never considers

16、why a person acts in determining liability.7The second group of efforts is inapposite. Motive is not a different mental state from intent; rather, it is a sub-type of intent. Motive is defined as the “ulterior” intention

17、 or “the intention with which an intentional act is d o n e ， 8Although at first this definition rings true, this definition ultimately offers a meaningless distinction between motive and intent. Because people act in a

18、“chain of intention， ， ，every intent is a motive for a prior or earlier intent.8 For example, a defendant pulls the trigger of a gun in order to make the bullet enter a victim’s body in order to kill the victim in order

19、to steal his possessions, etc.9 As a result, the only distinction between motive and intent are insignificant moments of time where “ [ a ] nintention ceases to remain a motive only when it becomes i m m e d i a t e . ，

20、， 1 0If there is such spare distinction between motive and intent, then normatively the statement that the criminal law should be engaged only with the most immediate of intents is weak. Critics have harshly ridiculed th

21、is second definition of motive. They contend that because motive and intent are essentially the same, the statement that motive is irrelevant to the criminal law can only be true as a tautology where motive is defined as

22、 all those intentions that have been deemed, for one reason or another, irrelevant.11 In contrast, all those that have been deemed relevant are designated as intent or mens rea.12Finally, the third group of efforts rejec

23、ts the approach of juxtaposing motive against intent or mens rea. Instead, these definitions of motive focus on the mental function that motive represents. According to Douglas Husak, motives may ^be understood as a ‘pol

24、ymorphous collection of action initiators.”，13 These motives may be further intentions, reasons, or other undefined mental states; their categorization is not important.14 Hyman Gross offers that “a motive …is a reason f

25、or doing the kind of purposeful act that calls for an explanation and that is done by the actor for the sake of something e l s e . ， ， 1 5Having a motive for an action is simply believing that “some end will be furthere

26、d by performing it, and ? ? ? [wanting] or [desiring] …to further that end.”16This article adopts this third functional definition of motive because it strives to define motive independent of intent and mens rea. Freed f