法学外文翻译--意图与疏忽 刑法的基本原则-外文文献翻译

1、法学外文翻译温州 姜Basic Concepts of Criminal Law,page117-120New York OxfordOXFORD UNIVERSITY PRESS 1998Intention versus NegligenceName：George P. FleteherTEXT: There are some situations in life in which people set out to accomplish certain goals and they realize their aims exactly as planned. They set out to go to the library and they arrive at the library. They set out to go to steal a book and they steal a book. Obviously, the aims are sometimes good, sometimes bad. But very often people get where they

2、 want to go. These are case of intentional conduct, of setting ones sights on realizing a particular target, whether the goal be socially desirable (going to the library) or criminal (stealing a book).In many situations, however, we accomplish both good and badnot as the object of our intentions but as the unwitting side effects of our conduct. Imagine that someone drops a wallet full of cash, a starving mother then finds it and uses the funds to save the lives of her three children. Losing the

3、wallet was an accident, and good came of it. Or suppose that a pharmacist mislabels a bottle of poison as a nutritional food supplement and then casually leaves a package of the bottles in the back of his store. A street person finds the bottles of poison and after reading the labels, drinks the poison and dies. Mislabeling the bottle was an accident, more or less, but great harm came of it.The person who dropped his wallet might feel good that his money was applied to a good purpose, but it wou

4、ld be odd for him to claim creditto expect praise and appreciation from othersfor saving the lives of the three children. But the pharmacist who mislabeled the poison might be responsible, both morally and legally, for the death of the person who consumed the poison. This difference should puzzle us. Praise for good deeds seems to presuppose an intention to do good, but blame for harmful deeds need not be attended by an intention to harm.Granting credit and giving praise require, it seems, a cho

5、osing to do good, an investing of oneself in philanthropy. Wrongdoing differs. If the pharmacist could avoid endangering the public by taking appropriate measures, he is required to do so. Of course, there is much work to be done in figuring out what these appropriate measures are. But if he pays too little attention to the measures necessary to protect the public from the poisons in his shop, his causing harm will be labeled negligent. And negligently causing harm can provide a basis for crimin

6、al liability as well as moral censure.Since Roman lawyers carved out applications for the terms dolus (intention) and culpa (fault, negligence), lawyers in the Western legal tradition have relied upon this pair of words to assay both criminal and civil responsibility. Receiving praise for doing good requires a good intention. But it seems that we can be blamed for the harm we bring about either by intention or negligence. All legal cultures in the West recognize the distinction between intention

7、al and negligent wrongdoing, but there is great disagreement about the contours and the implications of these ways of being held responsible.Negligence: Objective and SubjectiveWhy is negligence so troubling as a ground of liability? There are some, as suggested above, who do not regard negligence to be a form of mens rea or a proper ground for blaming either causing harm of making mistakes. There are others who insist that negligence is an objective standard and that, therefore, negligence inva

8、riably entails a depersonalized and unjust judgment of responsibility and blame. The negligent are not judged on the basis of what they have actually done but on the extent of their deviation from the mythical standard of the reasonable person. This critique of negligence has become acute. In recent years as many feminist scholars have argued that the standard of the reasonable person has a male bias built into it and that, therefore, the proper standard for judging female suspects should be a “

9、reasonable woman” standard.The terms “objective” and “subjective” get in the way of clarifying this dispute and trying to resolve it. The problem is that the terms mean different things to different people. Sometimes “subjective” is taken to mean: as the suspect personally believes. For example, in a famous nineteenth-century case, Commonwealth v. Pierce, the alternative to an external or objective standard of negligence was thought to be one in which the defendants good faith was controlling. In Pierce, the defendant, practicing publicly as a physician, caused the death of a patient by applying kerosene-soaked flannels to her skin. Concluding that the standard of liability was “external,” Justice Oliver Wendell Holmes, Jr. wrote that the question was whether the treatment would have been “reckless in a man of reasonable prudence.” The point of saying that the standard was “external” was to stress that good faith was not a defense and tha

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