For those of us who live in the world of Orthodox Judaism, there is a practice that divides many in the Modern Orthodox world from those in the Charedi world: the act of a married woman covering her hair. While many women in Modern Orthodoxy do cover their hair, (primarily those who take their observance more seriously, whom I call Centrists), there still exists a great number of married Orthodox Jewish women who do not. And many of these women are indeed serious about their commitment to Judaism. Hair covering for a married Jewish woman is a matter of Halacha. So the question arises, how can an observant Jewish woman claim to be serious about her observance while still refusing to cover her hair? Is there any Halachic basis? Is it a matter of ignorance? Or is it just plain refusal to do so?
Let us first examine the nature of the Erva that is a woman’s hair. The traditional translation of the word Erva is nakedness. Is hair Erva as the Gemarah tells us? The answer is... it depends. Not all women must cover their hair. That is clear Psak Halacha. It is only married women who must do so. Single women who have never been married do not. What that tells me is that there is no intrinsic Erva in hair itself (at least the way we normally understand the term Erva). For if that were so then even unmarried women would be required to do it.
Yet, the fact is that the hair of a married woman ...IS... considered Erva. I’m not sure if I understand the difference between married and unmarried women in this regard. Hair is hair. So when the Gemarah uses the term Erva it is obviously not being used in its usual meaning.
Let us now look at how Halacha treats hair covering.
There are two terms identified in Halacha that refer to sexually modest behavior:
Daas Moshe is the term used in Halacha to connote that which is the immutable Halacha transmitted to us via Moshe Rabbeinu. That is inviolable.
Daas Yehudis is the term that refers to a custom of modesty for women that is accepted by a predominance of them in a given society. If a woman transgresses one of these customs, she is liable for the transgression of Daas Yehudis, a Halacha that is relative to community standards.
The Shulchan Aruch (Code of Jewish Law) Siman 21 of the fourth section entitled Even HaEzer (dealing mostly with the laws governing intimacy between men and women) deals with the issue of hair covering. While it doesn’t specifically say that hair covering is relativistic, it cannot be ruled out that in fact, it might just be.
The activities mentioned in 21 are not categorized as either Daas Yehudis or Daas Moshe. It is, therefore, not possible to determine what is relativistic and what is not. The Shulchan Aruch is just informing us how to behave, in a "lump sum" fashion, without reference as to the level of prohibition. The tone of the Siman is more in the area of "run away from temptation" and states the extent to which one should go (or does not have to go) in order to accomplish it.
It can be understood from Siman 115 Halacha 4 that Daas Yehudis is a modesty issue which has always been relative to one's environment. It is designed to protect us from violating Issurei Erva, those laws about sexual conduct which are biblically mandated. By definition, Tznius (modesty) in dress is that which is communally perceived as such. Of course Tznius extends the area of Erva which it encompasses.
In certain Muslim cultures for example, women who do not dress in accordance with that community's standards are not acting in accordance with that society's perception of modesty. They would, therefore, be violating the relative Tznius (modesty) standards of Daas Yehudis and not the absolute Erva standards of Daas Moshe.
I believe Daas Yehudis is based on a culturally determined mindset. For example, if one becomes accustomed to rarely if ever seeing anything but the eyes of a woman then exposure to the face may very well be titillating. This is the case in some Muslim cultures. So, even though the face is not normally titillating in western societies dressing that way in a Muslim culture would be considered immodest and a source of temptation.
I think it is a reasonable proposition to say that the phrasing of the Shulchan Aruch, indicates categorizing uncovered hair as a violation of Daas Yehudis and not Daas Moshe. It is then possible to see Daas Yehudis as a Minhag Tznius. This, therefore, concedes at least the possibility that in another time and another place, uncovering hair would not be a violation of Daas Yehudis.
Just to be clear, I am not advocating the abandonment of what is now almost universally accepted Halacha. This indeed probably makes it a violation of Daas Yehudis. I am merely suggesting that an alternative interpretation of Halacha is possible so as to view those women who do not cover their hair in a more favorable Halachic light.
