Rabbis Yosef Wiener and Yosef Ifrah / R. Broyde’s thesis is that the violation of complete uncovering of women’s hair is included under the category of das yehudis and therefore subject to local custom. This contradicts an explicit Talmudic passage in Kesubos 72a-b that the prohibition is das moshe and therefore an objective prohibition not subject to local custom. R. Broyde attempts to prove that this passage is not authoritative (lo kehalacha). However, his proofs are inadequate and riddled with logical flaws. Furthermore, no single Rishon indicates that the passage is not authoritative; in fact, many Rishonim and Acharonim clearly present it as normative Halacha. Tur and Shulchan Aruch,as well, do not consider it das yehudis; they are merely citing the text of the Mishna in Kesubos above.

Controversy or Contrivance?

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Controversy or Contrivance?
The Attempted Justification for Uncovered Married Women’s Hair

by Rabbis Yosef Wiener and Yosef Ifrah

Below is the text of an article from the journal Dialogue, briefly discussed in this post: link and to which R. Michael Broyde responded here: link. Reprinted here with permission. The full article, with notes and italics, can be found here: link (DOC)

Summary

R. Broyde’s thesis is that the violation of complete uncovering of women’s hair is included under the category of das yehudis and therefore subject to local custom.

This contradicts an explicit Talmudic passage in Kesubos 72a-b that the prohibition is das moshe and therefore an objective prohibition not subject to local custom. R. Broyde attempts to prove that this passage is not authoritative (lo kehalacha). However, his proofs are inadequate and riddled with logical flaws. Furthermore, no single Rishon indicates that the passage is not authoritative; in fact, many Rishonim and Acharonim clearly present it as normative Halacha. Tur and Shulchan Aruch,as well, do not consider it das yehudis; they are merely citing the text of the Mishna in Kesubos above.

R. Broyde cites Rambam as a support, based on Terumas Hadeshen’s understanding of Rambam that completely uncovered hair is a rabbinic prohibition. This understanding is irrelevant since Rambam explicitly states that it is das moshe and not das yehudis.

R. Broyde’s citations of Acharonim as his support are frequently mistranslated and taken out of context.

R. Broyde’s thesis is therefore without source or basis.

The Fall 2009 edition of Tradition Magazine, the journal of the Rabbinical Council of America, contains a submission written by Rabbi Michael Broyde, offering a halachic basis for the practice of married women to appear in public with uncovered hair. It was proposed as a limud z’chus (halachic justification) for women who have a tradition of not covering their hair. A year and a half later, the Summer 2010 edition of the same magazine contains a rebuttal to the article by Rabbi Eli Baruch Shulman, together with a defense by R. Broyde.

This article will discuss the points raised in this exchange, offering a slightly different approach than that of R. Shulman. It will also respond to the defense offered by R. Broyde in his rejoinder, and demonstrate that R. Broyde’s thesis is woefully inadequate because it is based on a basic conceptual flaw and is compounded by numerous misreadings and misquotations.

We would like to stress at the outset, as did R. Shulman, that it is not our purpose to malign Jewish women, past or present. Our sole intent is to clarify the parameters of the prohibition of uncovered hair.

We will begin by summarizing the thesis as R. Broyde presented it: The Mishnah lists two categories of women who lose their kesuba – those who violate das moshe (Torah law) and those who violate das yehudis (Jewish practice of modesty). Uncovering hair is included in the Mishnah’s listing under das yehudis, or those who merely violate Jewish practice. The Talmud adduces a Biblical source and exclaims: “It is deoraisa! (a Torah law)”—meaning, uncovered hair should have been listed under the category of das moshe. The Talmud responds: “To fulfill the deoraisa requirement a basket (kalsa) [that covers one’s hair] would suffice. But to satisfy das yehudis, even a basket is forbidden.” Thus, the uncovered hair categorized by the Mishnah as das yehudis refers to partially uncovered hair, whereas completely uncovered hair is forbidden by Biblical law.

R. Broyde acknowledges that the simple reading of the Gemara indicates that completely uncovered hair is a violation of das moshe, not das yehudis. He claims, however, that Rosh, Tur, Shulchan Aruch, and a number of other Rishonim “switched the prohibition of completely uncovering one’s hair from dat moshe to dat yehudit.” Since uncovered hair violates only das yehudis, he asserts, it can therefore be considered a “subjective” violation that would not apply in a time and place where the custom is not to cover one’s hair.

R. Broyde further cites some authorities, among them Rambam, who understand the violation of uncovered hair as rabbinic in nature, as the word deoraisa at times implies. The fact that it is rabbinic, he asserts, allows for the possibility that it is subject to local custom. R. Broyde then briefly attempts to reconcile this understanding of the Rishonim’s opinion with the “simple reading” of the Gemara, which implies otherwise. He concludes with citations from assorted Acharonim that he believes support his thesis, acknowledging in his closing lines that “[this] view never appears in the works of leading Ahronim.”

The Talmudic Source Passage

The crux of R. Broyde’s argument is based on the words of Tur and Shulchan Aruch, which he understands to be in conflict with the simple reading of the Gemara. He devotes relatively little attention to this dilemma, focusing more on substantiating his thesis from the words of various halachic authorities. It is axiomatic that no halachic authority disagrees with the Talmud, as R. Broyde is well aware. The words of Tur and Shulchan Aruch, therefore, must always be examined in light of the words of the Gemara.

The Gemara assumes at its outset that completely uncovered hair is a more severe violation than that of das yehudis. It cites the derivation of R. Yishmael to prove so. The Gemara’s response accepts the premise of the question; it nonetheless answers by introducing a category of semi-uncovered hair that would be labeled a violation of das yehudis and to which the Mishnah was referring. Thus, the shakla vtarya (give and take) of the Gemara indisputably reveals the violation of fully uncovered hair to be das moshe.

R. Broyde claims that many Rishonim consider this violation to be das yehudis. This violates the above axiom; no Rishon would argue with the Gemara, and surely would not “switch the prohibition of completely uncovering one’s hair from dat moshe to dat yehudit.” Furthermore, if a Rishon did have some alternate way to understand the Gemara as labeling uncovered hair as das yehudis, this would unquestionably have deserved an explicit clarification. The absence of any comment compels the alternative understanding, which is expressly stated in many Rishonim. The fact that any other Rishon neglects to record a statement of the Gemara is in no way evidence of disagreement with the simple meaning; on the contrary, the default assumption is always that the Gemara’s conclusion is binding law. It is surprising that this problem is scantly addressed in the body of R. Broyde’s article.

R. Broyde spends many pages demonstrating that the words “deoraisa” and “azhara lei” mentioned in the Gemara’s citation of R. Yishmael do not necessarily refer to Biblical laws. The argument is, therefore, that if the violation is not Biblical, it is das yehudis. This flagrantly ignores the fact that the Gemara patently rejects the notion of fully uncovered hair as das yehudis. Whether the derivation of R. Yishmael is Biblical or rabbinic, its classification as das yehudis is repudiated by the Gemara.

Furthermore, throughout his essay R. Broyde misapplies the view of Rambam. Rambam’s view, according to the understanding of Terumas Hadeshen, is that the uncovering of hair is only a rabbinic violation. Yet, Rambam himself labels it as a violation of das moshe. We are forced to conclude that a rabbinic law can have a status of das moshe. It is implausible that such an obligation is subjective, for subjectivity would be subsumed under das yehudis. The categorization of the violation as das moshe, even if only rabbinic, renders it, inarguably, objective.

R. Broyde does not ascribe the view that uncovered hair violates only das yehudis to Rambam. However, in many places where he asserts that a particular authority holds it to be rabbinic, he then adds the words “das yehudis,” suggesting that they are somehow synonymous. This argument cannot possibly be rooted in the opinion of Rambam, who explicitly categorizes uncovered hair as das moshe. To marshal this view as a springboard for the supposition that hair-covering is das yehudis is to blatantly ignore the very source upon which the argument is based.

R. Shulman raises the aforementioned objection concerning the Gemara in his response to R. Broyde’s article. In his rejoinder, R. Broyde references various places throughout his original article where he suggested alternative approaches to the Gemara in light of his thesis. We will enumerate these approaches, and demonstrate conclusively how each is fundamentally flawed.

R. Broyde writes:

1.The Gemara in Ketubot is not normative (and is shelo le-halakha): a. The approach of the Netsiv that negative obligations derived from positive commandments are generally no more than custom, and that the Ketubot 72a-b sugya is incompletely normative (le-halakha)

In his original article, R. Broyde claims that there is a dispute between Rosh and Raavad as to whether a custom or practice mentioned in a verse is considered Biblical law. He asserts that the obligation to cover hair, which is derived from the verse regarding the uncovering of the hair of a sotah (indicating it was previously covered), is therefore subject to this debate. He explains that Rosh would understand the derivation as referencing a custom, thereby rendering it noncompulsory according to Biblical law.

This argument, although inventive, is untenable. The Gemara, which does adduce the derivation as proof of an objective violation, would be a direct refutation of Rosh’s position! The intimation that Rosh rules differently based upon a differing Talmudic source—and that there is a machlokes hasugyos—is fallacious, as no such source exists. It is Rosh’s explanation of the laws of mourning that is under discussion; no source from within the Talmud is ever adduced. Therefore, we are forced to conclude that either Rosh’s position is refuted based on this Talmudic passage, or, more likely, that his position within the laws of mourning is not applicable to this Talmudic passage.

R. Broyde’s second basis for the claim that this Gemara is not normative is:

b. The approach of those who adopt the view that the phrase deoraita in the Gemara does not mean “a Torah obligation.”

As has already been demonstrated, even if we were to interpret the Gemara’s words, “deoraisa hi” to refer to rabbinic law, this would in no way mitigate the strength of the Gemara’s open, uncontested objection that uncovered hair is not das yehudis. The fact that some Rishonim at times explain “deoraisa” as rabbinic accomplishes nothing in the face of a clear Talmudic statement. Additionally, the implication that there exists a machlokes hasugyos is a fiction. Ultimately, there is not a single text in the Talmud that can be read as disputing the clear assertion of the text in Kesubos that uncovered hair is not merely a violation of das yehudis. If the Gemara indeed understood deoraisa as referring to a rabbinic law, it would perforce be referring to an objective rabbinic law, so as to differentiate it from das yehudis. R. Broyde himself explains that a difference may exist between “subjective” and “objective” rabbinical laws. Thus, his approach does not mitigate the objectivity of the violation in the slightest, nor does it create a machlokes hasugyos.
R. Broyde’s third basis for the claim that the Gemara is not normative is:

c. My own insight that the formulation of azhara lei is generally rejected as a source for halakha by the Rishonim.

This suggestion, if true, suffers from the same flaw as the previous one. R. Broyde believes that “azhara lei” is not always a source for Halachca. This Gemara, however, clearly does regard this application as one that is binding. The Gemara modifies the Mishnah’s apparent categorization of fully uncovered hair as das yehudis based on this derivation. Thus, the usage of the term “azhara lei” cannot, in this case, ameliorate the strength of this prohibition.

R. Broyde’s fourth basis for his claim that the Gemara is not normative is:

The tension between the objective codification in Ketubot 72a-b and the subjective codification of Ra’avyah in Berakhot 24a.

R. Broyde cites the opinion of Raaviah in Berachos who permits the recitation of the Shema in front of the exposed hair of unmarried women as a basis to create a machlokes hasugyos. Raaviah, whose position is shared by the foremost authorities and is cited as binding by the Shulchan Aruch, understands the Talmud’s classification of hair as ervah concerning Shema to be limited to that of married women. R. Broyde cites Acharonim (Aruch Hashulchan, amongst others) who derive from this ruling that in a place where it has become the norm for married women to go out with their hair uncovered, the Shema may be recited in their presence. Based upon this, R. Broyde concludes that the Kesubos passage, in which the prohibition to uncover hair is presented as indisputably objective, is at odds with the passage in Berachos.
This approach is mistaken for a number of reasons. The Kesubos passage does not hinge upon the Berachos passage at all. The Berachos passage relates to the recitation of Shema, which requires that the concentration of the reader be devoid of any impure thoughts. Therefore, ervah in this regard is limited to that which could potentially distract the reader. The Kesubos passage, however, relates to the fundamental requirement of covering one’s hair in public. It is for this reason that a different verse is quoted there. Indeed, the two passages clearly deal with two entirely different issues – the Kesubos passage with the objective prohibition of pri’as rosh, and the Berachos passage with the subjective (according to this understanding of Raaviah) prohibition of reciting Shema in front of ervah. The fact that no authority since the time of Raaviah has thought to turn these passages into a machlokes hasugyos itself attests to the error of this approach.
R. Broyde’s fifth basis for his claim that the Gemara is not normative is:

e. The tension between Kiddushin 81b-82a in the name of Shemuel, and Ketubot 72a.

R. Broyde believes that the statement “hakol lesheim shamayim” (“all is dependent upon [one’s intent] for the sake of Heaven”) in Kiddushin is a basis upon which to create a machlokes hasugyos. The Gemara there cites an Amora who quotes Shemuel as cautioning against seating a married granddaughter on one’s lap. The Gemara counters with a leniency, also a citation of Shemuel: “All is dependent upon [one’s intent] for the sake of Heaven.” On this line, Ritva comments that various other interactions with women are also somewhat dependent on a person’s righteousness, as well as on the consequences of those activities. Based on Ritva, R. Broyde suggests that the conclusion of Kesubos 72a that hair covering is unequivocally forbidden may be ignored. He allows for this liberty in light of the “tension” between these two passages.
R. Broyde’s mistaken application of Ritva could be employed to do away with many of the laws found in Shulchan Aruch Even Ha’ezer. In truth, the words of Ritva are no more relevant to the passage in Kesubos than to any other prohibition. Ritva refers only to activities that naturally arouse improper thoughts. Our sages enjoin against such actions, since the Torah forbids improper thoughts; this is where subjectivity is warranted. One may be lenient in this area when he has achieved such a level of greatness that those actions enumerated by our sages will not lead him to inappropriate thoughts. Neither the Kesubos passage nor the words of Ritva in any way support the notion that the prohibition of uncovered hair is dependent upon causing improper thoughts. The claim that this prohibition is subjective is dependent upon R. Broyde’s other arguments.

R. Broyde’s next approach as to how to deal with the explicit Talmudic text is:

2. The tension between the various Amoraim in Ketubot 72a-b can be read to codify only the subjective obligation in Ketubot 72a-b.

a. The approach of the Minhat Ani that if hair covering in a
courtyard is permitted then hair covering in the market is rabbinic (and perhaps subjective), and thus the deoraita question in Ketubot 72a is not normative halakha.

R. Broyde suggests that a statement by R. Yochanan at the end of the passage under discussion actually refutes the Gemara’s assertion at its beginning that hair covering is not das yehudis. Aside from the fact that this understanding has never before been suggested, the very source used to justify this approach – Rambam, as understood by Minchas Ani – explicitly categorizes uncovered hair as das moshe. The notion that R. Yochanan disputes that which the Gemara states unequivocally is, therefore, completely unfounded.

R. Broyde’s next approach as to how to deal with the explicit Talmudic text is as follows:

3. The term paru’ah means disheveled and not uncovered

a. The view that uncovering and disheveling are distinct prohibitions and only disheveling is prohibited objectively.

This approach considers braided hair sufficient to avoid the prohibition of pri’as rosh. It is suggested by the author of Shevus Yaacov, who writes that if not for the explanations of Rashi and Rambam, he would have explained the Talmudic passage in Kesubos along these lines. He interprets “uparah es rosh ha’isha” as referring to unbraiding the hair (as is found in Rashi’s commentary), and not to removing the hair covering. He explains the word “kalsa” as referring to braided hair. This interpretation implies that das moshe includes only the requirement to braid the hair, not to cover it. R. Broyde concedes in his original article that many Acharonim strongly reject the position of the Shevus Yaacov. Nevertheless, he defends it as a partial basis upon which to permit uncovering of hair.

This approach, too, suffers from a basic flaw. According to the view of Shevus Yaacov, it is permitted for a woman to appear in public with her hair uncovered, provided that it is in a braid. The practice R. Broyde seeks to defend, however, is not that of braided hair; but rather of unbraided, fully uncovered hair. Accordingly, even the Shevus Yaacov would agree that such a practice violates the prohibition of pri’as rosh.
R. Broyde seemingly attempts to evade this problem by equating unbraided hair to hair that is “untidy,” and “overly exposed to the point that it is disheveled.” Thus, normally brushed hair that is not disheveled would assumedly be permitted. While it may be true that, according to the approach of Shevus Yaacov, the provocative nature attributed to hair correlates to its being unkempt, any grooming short of braiding is nonetheless indisputably included in the prohibition. R. Broyde himself recognizes that the prohibition of “disheveled” hair qualifies as das moshe, thus rendering it (even according to his thesis) objectively prohibited. Seeing as pri’as rosh, according to this explanation, is defined in the Torah by removing of a braid, non-braided hair (no matter how neatly combed) is unavoidably forbidden.

R. Broyde’s final approach as to how to deal with the explicit Talmudic text is:

4. The prohibition for women to cover their hair is a subjective Biblical obligation.

a. The approach of R. Babad that all is subjective.

b. The approach of R. Mesas that this is a dispute between the first and second views of Rashi.

This approach suggests that the obligation of hair covering can be Biblical and das moshe, while at the same time be considered “subjective.” There are two fundamental difficulties with this approach: First, it obliterates any practical distinction between das moshe and das yehudis. For if the Torah’s requirement for hair covering is dependent on custom, any practice subsumed under das yehudis (as a result of common observance) should ipso facto be considered das moshe. Second, and more significant in regard to this thesis, this approach in no way advances R. Broyde’s principal claim that fully uncovered hair is considered das yehudis. It would still fully retain the status of das moshe. Utilizing these sources to defend the labeling of uncovered hair as das yehudis is misleading.

We have conclusively demonstrated that there is no viable way to read the Talmudic passage under discussion in tandem with R. Broyde’s thesis. Consequently, his thesis is untenable. We will now turn our focus to the words of the Rishonim whom R. Broyde claims understand fully uncovered hair to be das yehudis.

The Words of the Rishonim

R. Broyde attempts to demonstrate that many Rishonim understand fully uncovered hair to be subsumed under the category of das yehudis. His list includes Rashi, Tosafos, Ritva, Rosh, Baal Ha’itur and Kol Bo. An investigation of these sources reveals that the vast majority were merely citing the language of the Mishnah (usually in a completely unrelated context). While the Mishnah does refer to hair covering as das yehudis, the Gemara immediately modifies that classification and qualifies fully uncovered hair as a more severe transgression than das yehudis. R. Broyde assumes that an unmodified citation of the Mishnah is indicative of a ruling that is at odds with the Gemara’s qualification. This argument is preposterous. These Rishonim do not intend to dispute the Gemara by mentioning the words of the Mishnah; rather they assume the Gemara’s conclusion. They do not deem it necessary to cite the entire text of the Gemara in order to reference the concept of overes al das, as referencing the Mishnah includes an understood reference to the Gemara’s elucidation of it. This should be apparent to anyone who reads the words of the Rishonim with an awareness of the passage in Kesubos.

Rashi- R. Broyde cites Rashi on Sotah 25a as proof that Rashi defines fully uncovered hair as das yehudis. Rashi simply cites the exact wording of the Mishnah in kesubos. He does not feel the need to note the Gemara’s modification of the Mishnah as it is not relevant to the discussion at hand.

R. Broyde cites the second explanation of Rashi on Kesubos 72a as an opinion that the prohibition is only das yehudis. Rashi writes: “Since Scripture states, ‘And he shall uncover,’ we can infer that at that time her head was not uncovered; we thus deduce that it is not the practice of the daughters of Israel to go out with their heads uncovered.” R. Broyde infers from this that the prohibition is one of das yehudis. This claim is untenable, since Rashi is clearly commenting upon the Gemara’s objection to the classification of uncovered hair as das yehudis. R. Broyde’s understanding of Rashi would render the Gemara’s objection incomprehensible.

Furthermore, Rashi himself, in the previous gloss, explains the Gemara’s exclamation “deoraisah hi” to be objecting that uncovered hair is considered das moshe. How, then, can a different statement of Rashi, explaining the very same line in the Gemara, be interpreted as understanding uncovered hair to be das yehudis?

In truth, Rashi’s second explanation merely provides an alternative understanding of the Biblical source prohibiting uncovered hair. The das moshe violation is derived from the Torah’s account of the accepted practice of Jewish women. This derivation renders the practice binding in all times and places.

A final proof that Rashi holds hair covering to be das moshe can be seen in the words of Ran. The latter’s commentary to Kesubos contains the same two explanations of R. Yishmael’s derivation as in Rashi. This is so even though Ran in Gittin is of the opinion that hair covering is das moshe, as noted by R. Broyde himself. Thus, it is clear that the two explanations given by Rashi are both consistent with the notion that fully uncovered hair violates das moshe.

Tosafos- R. Broyde cites Tosafos to Gittin 90b as another Rishon who refers to uncovered hair as das yehudis. Actually, the words of Tosafos indicate nothing of the sort. Instead, this is yet another example of a reference to the Mishnah; as previously noted, such a reference does not require a review of the Gemara’s explanation of the Mishnah, and certainly does not indicate dissention with the Gemara’s conclusions.
Rosh- The Tosafos HaRosh in Gittin, cited by R. Broyde, is another simple citation of the text of the Mishnah. R. Broyde further argues that Rosh on Kesubos does not understand the Gemara to be classifying uncovered hair as das moshe. Even if this were to be true, it would not yield R. Broyde’s conclusion that Rosh deems it das yehudis, for this would contradict the Gemara. Nonetheless, the exact position of Rosh is open to some interpretation and will be explored in the Notes.

Ritva- R. Broyde cites Ritva’s commentary to the Talmudic passage under discussion as proof that fully uncovered hair violates only das yehudis. This claim finds no support in the words of Ritva; nowhere does he state that fully uncovered hair is to be considered das yehudis.
Baal HaItur, Kol Bo, Semak- R. Broyde cites as proof to his thesis a number of Rishonim who quote the Mishnah. Not a single one of these Rishonim classifies fully uncovered hair as das yehudis. They simply cite the Mishnah, adding the Gemara’s qualification that the Mishnah’s categorization of uncovered hair as das yehudis refers to a woman wearing a kalsa.

The Language of the Tur and Shulchan Aruch

Tur and Shulchan Aruch do not include fully uncovered hair in the category of das moshe. They mention the obligation to cover hair when listing semi-covered hair under the category of das yehudis. From this, R. Broyde derives his implausible conclusion, that Tur and Shulchan Aruch “switched the prohibition of completely uncovering one’s hair from dat moshe to dat yehudit.”

Shulchan Aruch writes: “If a woman has done one of the following, she is considered to have violated das yehudis: Going out in the marketplace or in an alley or in a courtyard that many people frequent with her head uncovered and without the headscarf that all other women wear even though her hair is covered by a kerchief.” R. Broyde understands the term “even” to be an inclusionary clause, thus implying that fully uncovered hair, as well, is only a violation of das yehudis.

This interpretation ignores the fact that the rulings of Tur and Shulchan Aruch merely echo the language of the Mishnah, as has been pointed out numerous times thus far. R. Broyde stresses the contrast between the language of Rambam – who does include fully uncovered hair as das moshe – and that of Tur and Shulchan Aruch. In truth, this discrepancy in no way indicates opposed positions. A number of likely explanations can be offered to explain this omission. R. Broyde’s suggestion of pitching these poskim against the words of the Gemara, however, remains unfeasible. Furthermore, both Bach (on Tur) and Beis Shmuel (on Shulchan Aruch) note matter-of-factly that fully uncovered hair is subsumed under the category of das moshe. R. Broyde’s claim that their intent is to argue on their respective host texts is highly implausible. In fact, the particular language employed by Beis Shmuel indicates clearly that his intent is to explain the view of Shulchan Aruch.
An additional proof that Tur and Shulchan Aruch view fully uncovered hair as subsumed under the category of das moshe can be found in the words of the author of Chofetz Chayim. He cites the language of Rambam categorizing uncovered hair as das moshe and concludes, “and so wrote the Tur and Shulchan Aruch in Chapter 115 in which they rule like the above Rambam as Halachca, and so did all the earlier and later poskim rule as law, that if a woman walks into the marketplace with uncovered hair she thereby violates a Biblical prohibition.”

Kaf Hachayim

Finally, it is necessary to point out two erroneous citations made by R. Broyde to support his thesis. He writes:

R. Yaakov Hayyim Sofer, in his Kaf ha-Hayyim, Orah Hayyim 75:(17)
writes:

“It is also permissible to pray in the presence of European women whose practice is to always go with their hair uncovered, for it is the practice of all women to do so . . .”

And in 75:(18) he rules:

“Those women who move from lands where the practice is to cover one’s hair to a place where the practice is not to cover are permitted to go without a head covering, provided they have no intention of returning . . .”

Indeed, he maintains that one who moves to a place where the practice is not to cover one’s hair is permitted to go without her hair covered, and it makes no difference whether it is partially or fully uncovered.

R. Broyde concludes that Kaf Hachayim sanctions uncovering of hair where this is the practice. However, the two passages in Kaf Hachayim contain nothing novel. They are simply recording the identical words of many of his contemporaries—including many who explicitly reject R. Broyde’s conclusion.

The first citation deals with neither das yehudis nor das moshe, and contains nothing supporting the contention of R. Broyde’s essay. It concerns the reading of the Shema in front of uncovered hair, and is thus irrelevant to the permissibility of uncovering one’s hair. Many other poskim similarly rule that Shema may be recited in view of uncovered hair where this is the custom, and yet explicitly and emphatically prohibit the uncovering of hair.

The second citation is simply mistranslated, and, in truth, has no bearing on the issue at hand. Kaf Hachayim is commenting on the words of Shulchan Aruch that permit praying in front of a woman when some of her hair protrudes beyond her hair-covering. To this, Kaf Hachayim applies the opinion of Maharam Alshakar (cited by Magen Avraham) that permits the recitation in view of those exposed hairs, since the status of those hairs is dependent upon local custom. The exact translation of Kaf Hachayim is:

Those women who come from lands where the practice is to cover them to a place where the practice is not to cover them are permitted to reveal them (emphasis added), provided they have no intention of returning.

In his translation, R. Broyde replaces the word “them”—hair protruding beyond the hair covering—with the words “one’s hair” and “a hair covering,” concluding that Kaf Hachayim sanctions the complete uncovering of the hair as a valid custom.

It is obvious from even a cursory glance at Kaf Hachayim and the reference in Shulchan Aruch upon which he is commenting, that the reference is only to hair protruding from a head covering, not to total uncovering of the hair. Furthermore, Mishnah Berura cites and rules in accordance with the words of Maharam Alshakar, and yet very forcefully emphasizes the prohibition of uncovering hair; and even prohibits reciting the Shema in front of it. The quotation of Kaf Hachayim as a source for allowing the total uncovering of the hair is thus completely contrived.

We will conclude with the words of Aruch Hashulchan. This work, as is well-known, permits reciting the Shema in the presence of the uncovered hair of married women. Its author lived in Lithuania during a time when many women neglected to cover their hair. As one of the preeminent poskim of his times, he was well positioned to sanction the emerging custom. Aruch Hashulchan is also known for his attempts to justify accepted customs; yet with regard to the uncovering of hair, he does not attempt any such justification. Instead, he writes:

…and now, let us come and cry out concerning the breaches of our generation, due to our many sins. For it is many years that the daughters of Israel have made a breach in this sin in that they walk with uncovered heads. And all that which they [the Rabbis] have cried out concerning this has not helped (emphasis added). Now the iniquity has become widespread; the married women walk with their hair [exposed] like the unmarried women. Woe to us that this has happened in our days. Nonetheless according to the law it appears that it is permitted to pray and recite blessings in front of their uncovered heads…

R. Broyde writes in his conclusion: “I have discovered that many of [the Rishonim]—Tosafot, Rosh, the Tur, and Terumat Ha-Deshen in particular, established the prohibition for a woman to go with her head uncovered as a violation of dat yehudit and a subjective rabbinic prohibition. I find this to be astounding as well, because their view never appears in the works of the leading Ahronim.”

Based on a careful review of the sources, the approach of the leading Acharonim is not at all surprising, as it is fully consistent with the Rishonim cited by R. Broyde. Moreover, an analysis of the sources used in R. Broyde’s article reveals that they are neither consistent with his presentation of them, nor do they fit with his conclusions.

In conclusion we must therefore state unequivocally that R. Broyde’s halachic justification for the practice of women who do not cover their hair is completely erroneous, for it is based on irrelevant and non-existent sources.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

7 comments

  1. Rabbi Y.H. Henkin

    See Bnei Banim 3:22 that the Rosh et al does not explain Dat Yehudit as being a minhag. Also see Understanding Tzniut pp. 31-4.

  2. this looks like another waste of time, two kollel guys (great call by Gil) coming in with false assumptions accepted as fact whcih would preclude R. Broyde’s arguments.
    their main point (axiom) in the first part of the article after their bold summary assertions is that a rishon would NEVER argue with an assertion documented in a Gemara, and seemingly any Gemara.

    Based on this obviously correct assumption, any time there is a machlokes between sugyos, rishonim’s brains exploded, and that is why they are no longer around. also, you don’t have to read shulchan aruch, since we should pasken immediately from whatever it says on the face of any one gemara sugya one learns, and when you get to a different ruling in daf yomi, just switch over to that way of living until u get back to the first sugya.

    Sorry for the sarcasm, but this style of obtuse argument gets old quick. Maybe i’ll read the whole thing tomorrow and see their brilliance.

  3. Meir at 12:16

    I think if you had read a few lines of the article, you would have seen how it discusses the issue of machlokes hasugyos at length. What a[ bad] comment by someone who did not even read that which he is commenting about. Nothing more needs to be said about such a blogger.

    edited

  4. “this looks like another waste of time, two kollel guys (great call by Gil) coming in with false assumptions accepted as fact whcih would preclude R. Broyde’s arguments.”

    I stopped reading meir’s comment after this.

  5. That’s it, Gil, show up the “Dialogue” people for being true monologuers and bringing the real Dialogue.

  6. Aryeh and Rafael,

    i appreciate the criticism (though at least i noted that i didn’t read the actual article, or even the full excerpt), but now that i did i’m still not understanding their axiom. While there is no absolute and clear machlokes hasugyos proven here, Broyde’s references do show rishonim (and the shulchan aruch) refusing to defer to a specific amora’s conclusion.
    Similar to the theme of a machlokes in sugyos, it is not clear that a single opinion in the Gemara is always the binding law, perhaps there was argument later/earlier or in another beis midrash that was simply not catalogued in the Gemara, but was passed down to the rishonim, who followed an alternative reading of the drasha, or dismissed it completely.

    must one always assume that anything written in the Gemara of Bavel is binding law, or is the idea that rulings that were clearly settled therein are binding? it seems that the two writers are coming from the former perspective, but is that logical/accepted by our mesorah?

    btw Aryeh, i’m not a blogger, but a commenter who skims an article and comments without context. therefore, you should judge me in the same context as a VIN or YWN commenter, and in that case, i think i’m not that bad. the easiest way to raise yourself is to lower expectations.

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