Monday, November 29, 2004

Here is an answer to my question by R. Michael Broyde

I recieved an email from R. Broyde, who had been informed that we were discussing hair covering. He wanted to make sure his views were accurately presented, and sent me this file. I apologize that due to my lack of computer skill, the foot notes numbers didn't make it through cyber space, but they are in order at the bottom. My thanks to R. Broyde

Addendum: R. Broyde is an excellent model of the best in Torah and Maddah, a musmach of YU, a member of the Beit Din of America, Rav of the Young Israel in Atlanta,a professor of law at Emory Law School, and I am sure that he would welcome questions and comments, I only ask that he be given the respect due to a talmid chacham of his stature.

Addendum Number 2: the foot notes are now in place and correspond to their appropriate number at the bottom of the article.

Defending the Custom in Lithuania
that Married Women Did not Cover Their Hair

Michael Broyde (1)

The halachic issues involved in defending the minhagim of a community that has now nearly disappeared is a complex one, and a task not to be taken lightly. Indeed, perhaps one of the failures of our religious community is that we sometimes forget that the concept of not ignoring the teachings of our mothers (al titash torat imecha) and minhag ha'avot (observing the custom's of our fathers), includes not only the acceptance of their strictures, but -- at the least -- the validation of their halachicly based leniencies too.

One such issue was recently touched on by Rabbi Meyer Schiller in his excellent article entitled "The Obligation of Married Women to Cover their Hair" JHCS 30 pp. 81-108 (1995) when he states that:
It is fairly well known that among Lithuanian Jews and their leaders after World War I many married women uncovered their hair. This was common even among rabbinic families.
I question one phrase in this paragraph: the words "after World War I." It is quite clear from both the halachic and historical literature that this uncovering was the practice of the community in Lita (Lithuania) a 100 years before World War I, when Orthodox observance and culture was at its strongest. For proof of this, one need only examine the fact that many poskim note this uncovering in the 1870s as already being well established; see e.g. Rabbi Yosef Chaim (Ben Ish Chai) Parshat Bo 12 (writing around 1870). Rabbi Yecheil Epstein's famous remarks on the commonness of this practice (Aruch HaShulchan OC 75:7) were published in 1903, and Rabbi Kagen's (Mishnah Berurah OC 75:2) in 1881; both of them are clearly referring to what is then an already very well established practice, and not one that took root after World War I, which started in 1914. So too, even a casual survey of Lithuanian Yiddish and Hebrew fiction of the late 1800s indicates that most of women in the observant community of Lithuania did not cover their hair in the 1800s; see for example the well known Yiddish writer Yitzchak Moshe Rumsch's work, Se'ar She-ba'isha (Vilna, 1894) for a "fictionalized" discussion of these issues.

If that is the case, and what is being dealt with is a well-developed custom of the established Orthodox community of Lithuania -- a community that many now perceive as the idealized paradigm for non-chasidic Orthodoxy -- one has no choice but to disagree with Rabbi Schiller's final remarks on this custom that:
the Lithuanian practice is probably best seen as an aberration which, when the time became more receptive, was quickly abandoned. It may be understood in the context of the general laxity which enveloped East European Orthodoxy concerning this halacha in the post World War I era.
This minhag was not a product of the "general laxity" of religious observance in Lithuania in the years when this "practice" was developed; nor was this minhag abandoned. It came to an end with the nearly complete destruction of the Lithuanian Jewish community during the Holocaust.

What then is the halachic basis for this widespread custom emanating from this venerated Torah community? Both the Tur and the Shulchan Aruch (based on a wealth of rishonim(2) ) codify the prohibition for a woman to uncover her hair even completely as a dat yehudit. Dat yehudit is the term used for the socially determined customs of modesty of Jewish women -- minhag tzininut she-nohagu benot yisrael (Even Haezer 115:5) -- which according to most poskim is not immutable but which can and does change with the customs of Jewish women; see Iggrot Moshe EH 4:32(4), Yabia Omer 3:21 and many sources cited by Rabbi Schiller. Thus, the simple understanding of the Shulchan Aruch's and Tur's discussion of why even fully uncovered hair violates halacha places the prohibition in a halachic context that indicates it to be dependent on the local custom of "modest Jewish women," which certainly was, historically, to cover their hair. This would, however, imply that in a society where the normative custom of observant Jewish women is go without their hair covered, such conduct is permitted, according to Tur and Shulchan Aruch. (As Rabbi Schiller notes, the Beit Shmuel disagrees with the Shulchan Aruch and Tur's classification of the prohibition of full uncovering as dat yehudit.) So too, in a society where many women do not cover their hair at all, the secondary reasons for covering cited by Rabbi Schiller (at pages 93-94) -- licentiousness and Gentile practices -- also disappear. These insights alone perhaps justify the minhag of the Lithuanian community.

While one will not find teshuvot from the Lithuanian Torah community defending this minhag, this perhaps reflects the nature of Torah scholarship and discourse by the Lithuanian poskim, which generally did not focus on halacha le-maseh. With notable exceptions(3), it focused its profound intellectual energies on -- and produced many Torah works of unsurpassed virtue relating to -- abstract talmudic study, methods of categorization and conceptual analysis of Torah precepts. Not surprisingly, within the Lithuanian Torah community and its writings one can find quite a number of authorities, who -- as was the style -- provided forms of categorization for the obligation of women to cover their hair which indicated that there is no torah obligation for a woman to cover her hair in a society where uncovering is not perceived as immodest.

For example, Rabbi Naphtali Tzvi Yehuda Berlin (Netziv), a premier Lithuanian authority, in Amek HaNetziv, Sifri Naso 11 argues that whether there is a Torah obligation for women to cover their hair conceptually parallels and is interrelated to the dispute between Rosh and Ravad in Moad Katan 14a (Rosh, Moad Katan 3:3) as to whether torah law prohibits a mourner from having his hair cut. Both cases, Netziv notes, share the common context of the Almighty explicitly directing that a particular act be done in a special and unique circumstance: In one case He directs "roshechem al tefromu" -- that Aaron and his children should cut their hair even though they are mourners, and in the other case He commands "upara et rosh haisha" -- that the hair of a married woman to be uncovered or dishevelled during the sotah ritual. The question is whether the Divine edict directing an act to be done in one unique circumstance implies that in all other circumstances such conduct is prohibited or not?

The Netziv states that Ravad, who rules haircutting is prohibited by Torah law for all mourners generally and that the Lord had to specifically tell Aaron to cut his hair, would rule that torah law also mandates hair covering for all women generally. Ravad maintains that uncovering of hair in the sotah ritual is only permitted because the Lord specifically directed that uncovering of hair (which is generally prohibited) should be done during this ritual. Rosh, who rules that torah law does not prohibit hair cutting for mourner generally, would rule that torah law does not mandate hair covering for a woman generally. According to the Rosh, no hair cutting for a mourner and hair covering for a women are both merely customs, which the Almighty directed must not be observed in specific circumstances. This observation of Netziv would explain why Tur, who was the Rosh's son, categorized even full uncovering as a dat yehudit, a custom. Indeed, although the Netziv does not add this, he is certainly aware of the fact that normative halacha rejects the approach of Ravad and accepts that of Rosh vis-a-vis mourners; see YD 398:1 and 399:13).

One must also add to this mix the well known school of thought which rules the torah obligation for women's hair is limited to dishevelled, rather than uncovered, hair (see Shevot Yaakov 1:103). Indeed, many other limiting forms of analysis from Lithuanian poskim can also be cited related to woman's obligation to cover their hair; see Minchat Ani, s.v. Gilui Sair Benashim; Sedia Chemed 4:19 s.v. Deoriyta; Shut VaYashav Yosef YD 1-3; Chedushai Hafla, Ketubot 72a; Chedushai Mahardam al Sefer Hamitzvot LeHarambam, 175.

Thus, one sees the clear outlines of a halachic justification for uncovered hair begin to appear that might have been used in Lithuanian rabbinical circles and explains why married women did not cover their hair. Indeed, one can find quite a number of achronim who advance explanations for the obligation to cover their hair that lead one to conclude that in situations where modest people generally do not cover, halacha does not mandate such covering. Included in that list are: Sh"t R. Yitzchak Halevi 9 (Brother of the Taz, who discusses whether an arusa has to cover her hair, and relates covering to hirhurim, sexual thoughts); Sh"t Moshe ibn Chabiv EH 1 (who relates the obligation to cover to the societal norm of covering); Machatzek Hashekel EH 21 (same); Sh"t Sefer Yehoshua 89 (who states "but if the custom had been for all Jewish women to uncover their hair, there would be no prohibition even for married women"); Sh"t Vayashav Yosef (Burlow) YD 1; Sefer Chukai Nashim (by the author of the Ben Ish Chai) page 55 (same, but with less certainty); Sh"t Etz Chaim OC 12 (same); Yad Halevi al sefer hamitzvot shel Harambam Aseh 175 (same); Perush Lesefer Hamitzvot Shel Rav Sadya Gaon Aseh 96 (hair covering is a bechukotayhim issue).

The custom of Lithuanian Orthodoxy is not unique in this matter either. At least one other devout Orthodox community also accepted as normative that halacha does not require that married women cover their hair when modest Gentile women do not; this was the practice of the Algerian (and Moroccan) Orthodox community from well before 1900 also. The poskim of this community explicitly defended its custom in this matter with considerable zeal, and one can find a number of teshuvot on this topic from leaders of their community sanctioning this practice. (This Jewish community, like all others in Arab lands, was dispersed and essentially destroyed during the 1950s.) Indeed, to this day, the halachic leadership of this North African Jewish community in Israel maintains that hair covering is not required; see Rabbi Moshe Malka, VaHashiv Moshe 1:34 and 35 and Rabbi Yosef Massas, Mayim Chaim 2:110.

In my view, all of these authorities build on the simple conceptual insight found in Kiddushin 81b-82a which states:
Mar also follows the view of Shmuel, who states, one should not involve himself with women [touching] at all. He replied, 'we accept the other view of Shmuel, who recounts that touching for the sake of heaven is permitted.'
Rashi comments, to justify non-sexual touching that:
Rashi: All for the Sake of Heaven: and my thoughts are not about this women for the sake of sexuality or marriage, but rather touching and making pleasantries with this woman for the sake of her daughter.

Tosafot elaborates and states:

Tosaphot: All for the Sake of Heaven: This is what we rely on since we involve ourselves [touch] with women.

A similar such view is articulated by the Ritva commenting on this talmudic passage. He states:

All is dependent on wisdom and the sake of heaven. This is the normative rule of Jewish law, that all is dependent on what a person sees in himself. If he needs to distance him more, he must do so, even such that he not see women's undergarments when they are being washed. So too if he sees in himself that he has no erotic thoughts, he can look and speak with a prohibited sexual relationship and to ask about the well being of a married women, and this explains the conduct of Rav Yochanan who looked on the women as they were immersing, without any erotic intent, and Rav Ami who spoke with the kings mother, and other Rabbis who spoke with various Matrons [immodest women} and Rav Ada bar Ahava who danced with the bride on his shoulders at a wedding, none of whom where afraid of erotic thoughts. Rather, one should not be lenient on these matter unless one is a greatly pious person.

Similar such sentiments are expressed in Yam Shel Shlomo commenting on Kiddushin 81b. He states:
All is dependent on the that which one sees in one's eyes and feels in one's yetzer. Thus it is permitted to speak and look at an ervah, and ask about her well being. This is what the world relies on as we touch, speak, and look, but still in the bathhouse it is prohibited......
This view is quoted by Pitchay Teshuva Even Haezer 21:4.

All of this has a foundation in the famous formulation of the Ravya on Brachout 24a (siman 76) that all body parts of a women are only prohibited for a man to glaze at when normal women in his society cover these body parts, and thus they are erotic because they are covered. Otherwise (i.e, when normally revealed) they are not erotic, and need not be covered(4).

In this view, non-erotic activity is permitted since it is only touching grounded in eroticism that is always prohibited. To extrapolate this to the next step, which is that a woman may reveal areas of her body that are generally covered when (in time and place) such act of revelation is not thought immodest, is not far-fetched at all. Indeed, many women will go to a male obstetrician (even when a woman doctor is avalable, but merely less convenient), based on the view that even revealing makom ha'ervah to a man is permitted when the context deems it not erotic. Hair -- the logical assertion is made -- cannot be subject to any more restrictions than makom ha'ervah mamash. In a society where hair is generally treated without erotic content, such is permissible all the time, these rishonim would claim. And it for exactly that reasons that hair covering is classified as a dat yehudit (and not a dat moshe) in the Shulchan Aruch (as noted above) as it can change based on social norms(5).

In short, the established custom of Lithuanian orthodoxy was that married women did not cover their hair, and this custom was 150 years old when it -- and every other halachic practice of the majestic Lithuanian community -- was destroyed by the Nazis (may the Lord avenge the destruction) a short fifty-five years ago. A similar custom can be found in the North African Orthodox community at roughly the same times. Halachic support for this practice can be found in the text of the Shulchan Aruch, as well as in the rulings of many rishonim, some poskim and a few shelot uteshuvot.

Lithuanian Jewry, like many other European communities of its time, had customs and practices that some in America no longer consider "normative" halacha. That does not in any way imply "laxity in observance of halacha" by that venerated Orthodox community. Casting aspersions on the fidelity to Jewish law and tradition by now-destroyed Jewish fortresses in Europe is uncalled for -- and also not supported by the halachic sources.

As to what this argument about Lithuania says about the reality in America, that will have to wait, but the theoretical conclusions are clear.



1. Michael J. Broyde can be reached at 404 727-7546 and by email at .
Michael Broyde is a Professor of Law at Emory University and a dayan in the Beth Din of America. He is also the rabbi of the Young Israel in Atlanta and give the daily gemera shiur to the Atlanta Torah Mitzion Kollel.

2. Tosaphot HaRosh Gittin 90a s.v. im benai adam; Rashi, Sotah 25a s.v. ebaya lehu; Semak Mitzvah 181; Ittur, hilchot mered; Kol Bo, Hilchot Gitten (on overet al dat) as well as perhaps Tosaphot Gitten 90b benai adam and Ritva, Ketubot 72a s.v. ela b'chatzar. Rabbi Schiller, at page 92, too states this as the approach of the Tur and Shulchan Aruch. Why exactly these rishonim reached this conclusion is beyond the scope of this letter, and is worthy of full treatment in an article, which is avalable in draft form from this writer, for those who might be interested.

3. The most significant being Rabbi Yecheil Mechail Epstein and his Aruch HaShulchan. Sadly however, the relevant section of the Aruch HaShulchan which would discuss this topic in a systemic manner -- Even HaEzer 115 -- has not yet been published, and we thus do not really know what his full thoughts were on this topic, and whether he had a defense of this custom in preparation. The discussions found in Orach Chaim 75 and Even Haezer 21 are both incomplete, and not necessarily an indication of Rabbi Epstein's final thoughts. (Indeed, a close comparison of the terms uses in Orach Chaim 75 and Even Haezer 21 tempts one to speculate that Rabbi Epstein accepted that the torah prohibition was limited to cases of dishevelled, and not uncovered hair. The use of the term be'avonotanu harabim in OC 75 certainly should not be understood as referring to conduct without halachic justification, as the Aruch Hashulchan frequently will use that term for conduct he does actually justify. For more on this issue, see Rabbi Simcha Fishbane, "The Role and Status of Women in Jewish Law as Expressed in the Arukh Hashulchan" Judaism 43:492-503 (1993). (The Mishnah Berurah was a Polish posek, and did not generally accept, quote or refer to in a positive way the minhagim of Lita.)

4. An example of this can be found in Iggrot Moshe Even Haezer 1:56 who addresses the question of walking along a modern beach where women can be seen who are scantily clad.

5. Encyclopedia Talmudit notes (8:19):

end note: The dat yehudit (practice of Jewish women) is a custom of modesty that is found among Jewish women, even though it is not found in the torah and not grounded in a torah prohibition, rather it is a custom followed among the Jewish people for the sake of modesty, so that Jewish women should be more modest that other women of the world; one who violates these standards does something of immodesty.

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