Intention in the Babylonian Talmud: An Intellectual History
Schick, Shana Strauch
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This study examines the legal concept of kavvanah, or "intention," and attempts to establish the history of how it was conceptualized and applied by the sages of the Babylonian Talmud (BT). Tracing developments relating to a core legal concept along chronological and geographical lines gives us new insights into Talmudic legal thought and serves as a prism through which we can view the intellectual history of the Babylonian Amoraim. Analyzing many Talmudic discussions in which the intention of an actor factors into how a case is decided establishes that there was a pronounced shift in legal thinking in both civil and ritual law across the generations of Babylonian sages. Where early sages universally employed a system of strict liability in deciding civil cases, by the fourth generation there is a consistent emphasis on fault and negligence reflecting the intentions of a defendant. Two competing theories of liability predominate during this later period. Rava of the Mahozan school and his students require specific intent to cause damage, while members of Abaye' a rival Pumbeditan school regard general intent to act as sufficient grounds for liability. An analysis of the later strata of the BT shows that the anonymous redactors generally arranged sugyot in a manner favoring the Mahozan view.;Rulings in the realm of ritual law generally follow the same pattern. Over the course of several generations the Babylonian sages increasingly look to the intentions of an actor in establishing culpability for ritual violations. A crucial exception discussed at length involves Rava's influential dictum that ritual obligations are fulfilled regardless of intent. The BT's incorporation of intentionality into tort law minors trends observed in a number of other legal systems where there is a move from "objective" evaluative criteria focused on the causal role of an agent to "subjective" criteria that include the intentions and expectations of an agent in a given situation. However, the Babylonian sages begin to weigh "subjective" criteria several generations after initially diverging from their Palestinian contemporaries whose rulings typically reflected the dominant system of liability found in the Mishnah which rarely, if ever, imposed strict liability.