Monday, January 03, 2011

R' Michael Broyde missed the boat Re: the Halachic requirement for married women to cover their hair!

See update, following;

R' Michael Broyde is questioning the Halachic requirement that married women must cover their hair and one may not recite a brocha when it's uncovered. We feel it to be inappropiate to post R' Michael Broyde's speech link.  We can't allow anyone to keep chipping away at the "mesorah". See Letter to Editor, following;
To the Editor,

The nature of the obligation for married women to cover their hair has been the subject of much discussion of late in the halachic periodical literature. One of the first articles regarding this topic was by Rabbi Mayer Schiller in the Journal of Halacha and Contemporary Society (Fall, 1995), titled "The Obligation of Married Women to Cover Their Hair". In the article, although Rabbi Schiller firmly rejects any valid halachic opinion permitting total hair uncovering, he nevertheless advances a theory based on the Tur and Shulchan Aruch that might possibly give validity to such an approach.

1. Rabbi Schiller demonstrates from the wording of the Tur and Shulchan Aruch that the prohibition of completely uncovering ones hair is Daat Yehudit. ( Jewish practice). The article infers this from the fact that in their listing of what constitutes DaatMoshe(the rule of Moses), neither Tur nor Shulchan Aruch make mention of a woman's hair being fully uncovered. Indeed, they mention it in the lesser, possibly subjective category of Daat Yehudit. I believe that this is based on a fundamental misreading of the above sources.

The Mishnah in Ketubot (72a) states "And these [women can be] divorced without [receiving the amount stipulated in their] ketubah : "One who transgresses DaatMoshe(the rule of Moses) or Daat Yehudit( Jewish practice). And what is Daat Moshe? She feeds him untithed produce or she cohabits with him as a niddah (in a ritually impure state), she does not separate challah, or she vows and does not fulfill her vow. And what is referred to by the words "Jewish practice"? She goes outside with her hair uncovered, .. .or if she speaks with every man, etc."

Seemingly, the Mishnah understands that the issue of married women's hair covering as not categorized as DaatMoshe, but rather as Daat Yehudit. The Gemara (ibid) questions the Mishnah's categorization of women's hair covering as merely a "Jewish practice", asking:

"Is it not biblically ordained? As it is written,'he shall uncover the head of the women' (Bamidbar 5:18). A tanna in the Academy of R.Yishmael taught that "this is a warning to Jewish daughters that they should not go out with their heads uncovered'".

The Gemara explains that biblically it is sufficient for women to partially cover their hair with a kalatah (a basket worn on the head, according to Rashi), whereas to go with her hair completely uncovered would indeed be in violation of Daat Moshe, a violation on a biblical level.

The Tur ( Even Haezer, 115) follows the Mishnah in Ketubot(72a) in listing examples of what is considered transgressing Daat Yehudit; "One who goes outside even if her hair is not totally exposed, rather there is a basket on her head, since she does not have a redid". The Tur carefully added the word "Elah"(rather) emphasizing that only partially exposed hair falls under the category of Daat Yehudit .

This is further clarified in the Shulchan Aruch (ibid)"And what is [ violation of]) Daat Yehudit? One who goes outside with her hair uncovered without a redid like all women, in spite of the fact that her hair is covered with a cloth.

The reason that the Tur and Shulchan Aruch do not mention this in the laws of Daat Moshe is obviously that the Mishnah itself does not list uncovered hair as one of the examples of Daat Moshe. Therefore, the Tur and Shulchan Aruch, following the text of the Mishnah, list roshahparuah (uncovered hair) in the category where the Mishnah listed it - that is, in Daat Yehudit. However, as explained by the Gemara itself, roshahparua means with a kalatah - that is, covered partially - and this indeed is precisely how Tur and Shulchan Aruch rule.

This is where Rabbi Schiller erred: According to his understanding (that uncovered hair is only Daat Yehudit) a contradiction arises how this is consistent with the Talmud which clearly states that roshah parua (completely uncovered hair) is deorayta (a violation on a biblical level). Rabbi Schiller points out that indeed the Beit Shemuel (Even Haezer 115:9) addresses this difficulty and seems to argues on the Tur and Shulchan Aruch. In truth, however, a careful reading of the Beit Shemuel reveals his intention merely to clarify the words of the Shulchan Aruch, and not to question them: "The rule is: totally uncovered hair is a violation of Daat Moshe; if her hair is partially covered with a basket or something else, but not covered according to the custom of the daughters of Israel, this is in violation of Daat Yehudit". And thus, it is quite simple why normative and accepted halachic practice has rejected that very justification.

2. Rabbi Schiller makes mention in his article of Rabbi Yosef Messas's theory that suggests that women's hair covering is no longer a requirement in a society where married women no longer cover their hair [SeeMayim Haim vol. 2:110,Otzar Hamichtavim (3:884)]. I was rather surprised to see that in a letter to the editor of the this Journal ( Pesach, 1996), Rabbi Michael Broyde makes note that this leniency of uncovered hair was indeed the practice of the Algerian and Moroccan Orthodox communities from well before the 1900's, and bases his statement on the above writings of Rabbi Yosef Messas. I must protest this as a serious inaccuracy. Being of Moroccan descent and heavily invested in the research of Magreb laws and customs, I can say with full certainty (based on firsthand accounts) that throughout the generations, women were particularly meticulous in this matter - to the extent that it is well known that even while washing their hair in the bathhouses, they would have a towel covering their hair. Rabbi Shlomo Dayan (publisher of the Mayim Haim and close student of Rabbi Messas) further informed this writer that it is quite possible that Rabbi Messas formulated this limud zechut (justification or explanation for leniency) only with regard to Telmeson, Algeria (where he was the rav) where the forces of Modern French civilization penetrated and threatened the very religious infrastructure of the community. As such it can hardly be seen as a negation of the long-standing Morrocan minhag (custom), as it was well known that all women in Morroco would don at least one hair covering, if not two. It is quite probably, therefore, that in an attempt to keep the last string of orthodoxy intact, Rabbi Messas defended the deviant behavior that plagued his city.

Rabbi Schiller makes mention of Rabbi Yosef Chaim in his work Chukei Nashim., who although rejecting the notion that women may uncover their hair, nevertheless offers a justification for European women who were lenient on this matter. Rabbi Schiller seems to translate the carefully worded "hitnatzlut" as a "justification", but a possibly more accurate translation would be "an excuse". RabbiYosef Chaim cannot be giving any validity to such a custom as he himself writes a couple of lines before, "according to our law it is forbidden."

3. Rabbi Schiller mentions that it would take us beyond the confines of his essay to explain why one should not rely on a handful of isolated sources and, therefore, what is well known that women in Lithuania were lenient on this matter is probably best seen as an aberration which when the time became more receptive, was quickly abandoned. Rabbi Schiller is to be commended on his assessment that distinguishes between aberrant practice and a minimally acceptable halachic custom. The parameters as to what defines a halachically valid custom are a long and detailed subject , not suitable to the present venue. Nevertheless, it is universally acknowledged that a widespread flouting of halachic norms, unsupported by authoritative opinions cannot be redefined as a minhag yisrael. See further Kaf Hahayim(135:40), Hazon Ish(O"H 39,8) that a minhag not supported by rabbinic authorities is not called a minhag. In fact, several contemporaneous Lithuanian scholars strongly condemned this aberration. See Aruch Hashulchan (Orach Chaim75:7), stating that women in his generation are accustomed to uncovering their hair, "ba'avonotainu harabim [due to] our great sins. See Shevilei David (75) who condems this practice as well.

Indeed, the poskim do not suggest a concession due to societal change that would permit women to uncover their hair totally . However, in regards to reciting the Shema in front of married women several poskim rule that this is permitted, but this is not because they consider uncovering the hair as permissible. Rather, they are ruling about recitation of the Shema, which may not be recited in the presence of an erva, a part of the body which is customarily covered. In light of the reality that most women in today's world do not cover the hair, it can no longer be considered as erva, and for that reason, on may pray in the presence of a woman with uncovered hair. See Aruch Hashulchan(ibid), Ben Ish Chai (Bo,12).

One may suggest that the mitzvah for women to cover their hair is not merely a gezeirat hakatuv (written decree); rather, the Torah is revealing to us a standard as to how Jewish women, benot Yisrael, should conduct themselves. The verse "Uparah" teaches us that the proper derech (practice) for benot yisrael is to cover their hair. Indeed, Rashi (Ketubot 72a), writes in his second explanation to the source for hair covering from the verse "Uparah et Rosh Haisha", that from here we learn that it is not the derech (practice) of the daughters of Israel to go outside with uncovered hair. Rashi seems to suggest, that the Torah is informing us of what the derech of benot Yisrael both was and should be. See Responsa Vayeshev Yosef ( Berlau) Y"D 1,2, that this practice further developed in a minhag Torah (Torah custom), not subject to hatara (releasing of vows).

In light of the above explanation, we may also understand why there exists in the framework of this halachah a clear distinction between married women, who have the obligation to cover their hair and unmarried women, who don't. The Torah was indeed not issuing a gezirat hakatuv. If this were the case, there would truly be no difference between married and unmarried women . Instead, the Torah revealed to us that it is the derech for a married woman to go outside with her hair covered, whereas for unmarried women, it is not the derech. Subsequently, the Torah's definition of derech for married women is not subject to change, since this derech is not based upon the norms of society, but rather the Torah has defined the proper behavior for Jewish women. This is indeed why there is a distinction in the Gemara between a woman uncovering her hair in a public domain in contrast to within her own chatzer (courtyard)or bayit (home), as in a woman's home, the Torah does not view it as the derech to have her hair covered.

Therefore, the leniencies mentioned in the Aruch Hashulchan, Ben Ish Chai (Bo,12), and others regarding kriat shema does not affect the obligation of a women to cover her hair, as the former is dependent upon hirhur, (see Responsa Yehoshua Even Haezer 89, and Divrei Chamudot Berachot 3:37) whereas the latter is derech benot Yisrael.. Likewise, one cannot deduce from the Maharam Alashkar (35) (who permits hair which is protruding from a woman's head covering where this is the norm), that in places where women totally uncover their hair, would likewise be permitted. The distinction being, that the obligation of women's hair covering was already classified as derech benot Yisrael. This is not the case by hair merely protruding a women's hair covering, which was possibly never included in the original obligation.

To reiterate the points mentioned above:

1.Rabbi Schiller's claim that Tur and Shulchan Aruch understand that women's hair covering is rabbinic and therefore subject to change is unfounded. Women's hair covering isdefined by the Gemara in Ketoubot(72a) as Deoraita(See Meiri), in the category of Daat Moshe . No Rishonim or Acharonim seem to suggest otherwise. The Torah is divulging that derech for a married woman is to go outside with her hair covered, and setting a higher standard of behavior for Benot Yisrael.

. 2. The authorities that argued that local custom did impact upon halachah only did so in regard to the amount of hair that had to be covered. None of them disagreed with the basic requirement of hair covering in general. In regards to a negligible minority that indeed lent credence to such a view, they have been rejected by the consensus of the halachic world. Although there were a few generations in which women found the prospect of covering their hair too burdensome, today many women are willing to be moser nefesh for what is still a difficult precept . It is important that we know that halachic thinking is on their side.


Rabbi Mordechai Lebhar

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