Tuesday, December 23, 2008

Orthodoxy and a Woman's Hair

The Halachic requirement for married women to cover their hair is one of my most perplexing Halachic issues. A woman’s hair is called Erva – Nakedness. The problem is this concept does not apply to all women. It only applies to the hair a marreid women. The hair of a single woman who was never married does not require covering. It is not considered nakedness at all – no matter how attractive it is made to look.

Certainly 21st century western culture does not consider a woman’s hair to be nakedness either. Not any more than a woman’s face. That is an objective fact.

I suspect that in the late 19th and early 20th century this is why many of the most religious Jewish married women – even those who lived in the Lithuanian influenced portions of Europe - started to walk around with out any hair covering at all. I'm told that this was the case even among the wives of many prominent rabbanim.

An indication of this phenomenon is Rabbi Yechiel Michel Epstein’s famous Psak in his Halachik work, the Aruch HaShulchan. While he laments that fact that many women no longer cover their hair, he nonetheless permits one to make a Bracha in front of a woman whose hair is uncovered. It is ordinarily forbidden to recite a Bracha in front of an Erva.

Had it not been for internal cultural pressure from the huge influx of holocaust surviving European Chasidim who immigrated to the United States post holocaust - and whose wives meticulously covered their hair – I truly believe this Halacha would have fallen into complete disuse in this country. Very few Orthodox women covered their hair before then.

I wrote a post about hair covering about three years ago that suggested that Orthodox women who in the past did not – and currently do not - cover their hair should be given a Limud Zechus - the benefit of the doubt. It is in theory - if not on practice -possible to say that they do not violate Halacha.

I have recently been reminded that a far more knowledge Rav who is a brilliant Talmid Chacham, Rabbi Michael Broyde, wrote a far better treatment of this subject than I did. It is publicly available in the Avodah archives of the Aisdas Society. Although I strongly suggest it be read in its entirety, I present an abbreviated version of it here:

The vast overwhelming majority of contemporary poskim who address the issue of hair covering rule theobligation to cover to be a torah violation; see Yechavah Daat 5:62,Tzitz Eliezer 7:48:3, Iggrot Moshe EH 1:53, Seredai Aish 3:30. Indeed, one is hard pressed to even find someone whose reputation we are familiar with who disagrees with that.

A limud zichus is a plausible path not taken by the poskim. Sometime, indeed, views that are analytically plausible are not taken by any halachic authorities and one should not follow a practice not endorsed by poskim even if it is analytically plausible within the sources. A limud zechut is not a das yachid, which is not a chiddish. It is, at some level, less than all of them (but more than pilpula belama).

In the context of hair covering, there is quite a bit of pilpul where commentators advance rationales for the prohibition of married women not covering their hair which indicate that married woman need not cover their hair if religious women generally do not. By categorizing
the prohibition to uncover in the manner they do, these poskim seem to indicate that the prohibition is time (or place) bound.

For example Sefer Aleh HaMitzvot (of Rav Chagiz) Mitzvah 262 classifies the prohibition to
cover as part of chukat hagoy; something similar is done by Rav Perlow in Sefer Hamitzvot Shel Rav Sadia Gaon, 1:650.

Yet other pilpulistic analysis focus on the linguistic ambiguity in the hebrew word "per'iah" which is the word used in Numbers 5:18, the verse that is the basis for the prohibition. These authorities ponder whether a torah prohibition is violated when women go uncovered, and appear to limit the torah prohibition to disheveled, which they claim is what the word per'iah means, rather than uncovered; Peni Moshe, commenting on Even Haezer 21:2 (in Mareh Hapanim #2); Rabbi A. Hoffer, "Which Disheveling [Uncovering] of Hair for Women is Biblically Prohibited?," Hatzofeh Lechachmat Yisrael 12:330 (1928); and perhaps Rav M. Kasher,
Devri Menachem, Orach Chaim 5:2:3.

Consider the words of the Ben Ish Chai (in Sefer Chukai Hanashim Chapter 17) written as, I suspect, some sort of a limud zechut on the conduct of Jews in Eastern Europe with regard to hair covering. He writes:

"It is prohibited for a women to reveal any part of her body, only her face, neck and hands may be revealed. . . . However, the women of Europe have commenced . . . to uncover their faces, neck, hands and heads [hair]. It is true, they uncover their hair -- according to our law it is prohibited -- but yet they have a justification, because they say that the tradition has become accepted, both among the Jews and other nations where they live, to accept uncovering of hair, like the uncovering of the face and hands, as not causing provocative thoughts . . ."

This type of limud zechut is not the same as a das yachid, which is the view of a single (or small group) of poskim. In my view, minority opinions (particularly of achronim) are only really of value when they are counter to ones inclination, but yet not provable wrong.

In the context of hair covering, the most eminent example of a das yachid Rabbi Yehoshua Babad (the father of Rabbi Joseph Babad, the author of the Minchat Chinuch), in
Responsa Sefer Yehoshua, #89. He states:

If the tradition had been that married women went with their hair uncovered and single women with their hair covered, then it would be prohibited for single women to go uncovered, and married women could walk around uncovered . . . . All is dependent on the tradition (minhag) of the women.

Similar such sentiments are taken by Rabbi Yosef Masas in Mayim Chaim 2:110 (and Otzar Michtavim #1884), and by Rabbi Moshe Malka (Vehashiv moshe 34). This rationale appears to have been accepted, at least in theory, by the Machatzitz Hashekel (commenting on Even Haezer 21:5) when he states that the reason single women do not cover their hair is because the standards of observant women in society determine the permissibility of uncovering. He states this is so even according to those authorities who consider it a biblical obligation for single women
to uncover their hair.

Allow me to conclude with an observation. I was once participating in an email discussion about cheating on income taxes in Israel (I was against it), and one of the corespondents was quoting rationale after rationale and verbal conversation after verbal conversation with 'poskim' who permit this (he claimed).

I observed that I can find more published teshuvot permitting married women not to cover their hair than I can find written teshuvot permitting cheating on Israeli income tax according to Jewish law! To my surprise, this statement deeply bothered people --even as I think it a true statement about the published literature -- certain people view the obligation of married women to cover their hair as a crucial social component of orthodoxy, to which no breaches in the wall shall be tolerated. That approach is inconsistent with my understanding of how halacha ought to function.