Is This Really Dialogue?

Is This Really Dialogue?

A Reply to the Interesting Substance of a Critique in Dialogue’s Inaugural Edition of my Tradition Article on Uncovered Hair

Guest post by R. Michael J. Broyde

Rabbi Michael Broyde is a law professor at Emory University, was the founding rabbi of the Young Israel in Atlanta, and is a member (dayan) in the Beth Din of America

Preface

In 2009, I published an article in Tradition Magazine explaining how one could understand the Talmud, a group of Rishonim, the Tur, the Shulchan Aruch, and the Levush to permit married women in contemporary society to forgo covering their hair. I recognized that the approach I outlined had been rejected by the Jewish law authorities of the last centuries and made clear that I was not advocating a change in the normative halacha, but merely proposing a limmud zechut for why married women did not cover their hair.[1] Rabbi Eli Baruch Shulman published a critique of my position in a later volume of Tradition and I replied at length.[2] Recently, the inaugural issue of the journal Dialogue For Jewish Issues & Ideas published another response to my article by Rabbi Yosef Wiener and Rabbi Yosef Ifrah entitled “Controversy or Contrivance? The Attempted Justification for Uncovered Married Women’s Hair.”[3]

I might have chosen to ignore the article for its disrespectful tone[4] or strident, condemning style,[5] but I came to feel that notwithstanding its tone, the article made enough substantive points of halacha to warrant a response. I had hoped to publish that response in the journal Dialogue, but to my surprise—even though the journal is named Dialogue For Torah Issues and Ideas—the editors expressed no interest in publishing an article-length reply. They were only willing to let me submit a short letter to the editor, which I did, but which could not cover the relevant issues satisfactorily.

Before I move to the substance of the matter, I want to spend a few paragraphs explaining why I have generally held off writing such replies, and why I am breaking that pattern now. In addition, since my original article came out, two or three important new sources have been published which support my suggestion. Reviewing those will set a helpful and appropriate atmosphere for considering Rabbis Wiener and Ifrah’s points.

The Joys of Silence and the Price of Dialogue

Years ago, I gave a public shiur on a topic I had just written an article on, (I think it was about celebrating Thanksgiving) and when it was over, a person approached me, smiled sweetly, and told me that “I was much less impressive in person than in writing.” I was taken aback at the time, but have come to understand that my most effective mode of sharing my understanding of halacha is in writing. When I write, I have discovered that I can be more precise, elegant, and fine-tuned than any other method of communication available to me.

Yet, my writing is not finely tuned enough to forestall all criticism, much of which is ad hominem and mean-spirited. And it is not fine-tuned enough to make it productive to respond to each of those criticisms. Let me explain.

First, many have misunderstood my writings to mean the opposite of what’s being meant, In each of the four long articles laying out a rationale for why Orthodox women of previous generations did not cover their hair, I explicitly said, in many different ways, that “as a rabbi of little stature, I have no intention in deciding halachic practices for the community that would be in opposition to the rulings of the great poskim of our generation.” I repeated this in a shiur distributed by yutorah.org, and I repeated this again in my response to R. Shulman’s reply.[6] Since even a casual reader ought to understand my view by this point, I almost question the motives and integrity of people who insist that I must have meant something else—that I have some sort of baseless agenda to bring new halachic practices into the mainstream. I chose not to respond, therefore, each time someone leveled this critique.

Second, some of the criticism of this article has come from Torah giants of our generation but in a tone that would have steered the conversation to the personal rather than the constructive. Even at the cost of bearing harsh criticism, I believe that kavod ha-Torah militates against entering into such fights, and to respond only to the many wise and thoughtful Torah scholars who have disagreed with me politely, publicly when in public, and privately when in private is the give and take of Torah—and it makes halachic Judaism more authentic. But the name calling, subtle and not so subtle jibes at my personal integrity, and mean spirited tone in many of the articles and postings made it challenging to respond other than in this manner which undermines the general principles of kavod ha-Torah—and I simply cannot bring myself to impugn on the honor of Torah.

My third reason for staying away from the fray has been more selfish. Since I stepped down from the active synagogue rabbinate, I have found time to return to intense learning. This has afforded me the opportunity to publish articles on a broad variety of topics and to give shiurim in many different places. Furthermore, I am still actively involved as a dayan in the Beth Din of America. To get into the back and forth of every criticism would take away from those endeavors, ones I find to be far more productive. No matter who wins a mud fight, everyone gets muddy. I prefer to learn Torah than to roll in the mud. If I were to stop my learning and respond in kind to every ad hominem attack, the volleys back and forth would continue in a non-productive way.

Therefore, I have come to the conclusion that it is better to be silent than respond to the many ad hominem attacks. Rabbis Wiener and Ifrah’s reply is worthy of a response, precisely because it is not ad hominem in nature, but forces one to grapple with the sources, as Torah discourse should be.

Additional Sources Supporting My View (Published Since the Original Article)

As a last preliminary step, I want to note additional sources that support my position which have come to light since my article came out. One, a recollection by David Keter of a conversation he had with Rav Shach, tz”l states:

Rav Shach met me at some length, and told me very clearly and directly that whether hair covering was obligatory or not when most modest women did not cover their hair was a dispute between the Shulchan Aruch and the Rambam, since Rambam called hair covering a dat Moshe and Mechaber called it a dat Yehudit. Rav Shach told me that it was better to be strict on this matter, but one who was makil, yesh al ma lismoch [has what to rely on]. When I pressed Rav Shach about explaining the basis for the Mechaber’s view, he told me that the Mechaber is adopting the view of the Tur, which must have been his view of the Rosh as well, although Rav Shach indicated that he did not see that view in the Rosh himself.[7]

Second, Tradition’s blog, Text and Texture, recently published a retranslation of the Ben Ish Chai‘s Judeo-Arabic work in this area—Sefer Chukei Nashim. This made it clear that the Ben Ish Chai also had a limmud zechut on this topic. The new translation reads:

Look at the women of Europe whose custom is not to hide themselves from strangers. Nonetheless their clothes are orderly; they do not reveal their bodies except only their faces, necks, hands, and heads. It is true that their hair is uncovered and this custom of theirs is not possible according to our laws. But, they have one justification. They say “Yet still, this custom (of having their hair uncovered) was accepted by all their women – both Jewish and Gentile – to go with their hair uncovered like the revealing of their faces. It does not cause sexual thoughts in men when they see it with their eyes.” These are their words which they answer for this custom and we do not have an answer to push away this answer of theirs.

The last sentence, which was not translated into Hebrew at all and which I had never seen before, makes it is clear that a limmud zechut is being put forward.[8]

The third is an interpretation suggested by Rabbi Mordechai Willig in the course of two lectures on this topic. After thoroughly reviewing the exchange between myself and R. Shulman (referred to in note 2) and concluding that my view was wrong and R. Shulman’s was correct with regard to the Tur and Shulchan Aruch, Rabbi Willig—who is absolutely firm in his view that married women must cover their hair as a matter of normative Jewish law—considered a completely different approach focusing on the views of Rambam and Rashi that hair covering is a subjective dat Moshe.[9]

Together, these three sources provide substantial support for my original suggestion. David Keter notes that Rav Shach understood the Tur and Shulchan Aruch to classify hair covering as being both a dat Yehudit and subjective, as I had proposed. Rabbi Willig insists that this approach is wrong, but considers the possibility that both Rashi and Rambam consider hair covering to be a subjective dat Moshe. The Ben Ish Chai, like Ra’aviah, simply considers the obligation to cover subjective at its core. Had these three views been widely known before I published my initial article, I might not have bothered to publish at all. But, until I started writing, the small number of Aharonim who permitted married women to leave their hair uncovered, and the various potential justifications, were virtually unknown. I feel that my articles have thus accomplished their purpose: to explain why the conduct of married women who do not cover their hair could be justified as consistent with one or more minority views found within halacha.

Replying to “Controversy or Contrivance? The Attempted Justification for Uncovered Married Women’s Hair”

With all that, Rabbis Wiener and Ifrah’s substantive comments deserve a full discussion, to which I now turn.

A. Correcting a General Misperception

I will begin by correcting what seems to be a misrepresentation of my article as a whole. If one were to read only Rabbis Ifrah and Wiener’s piece, one would get the impression that I am the first person to suggest that whether married women cover their hair or not is a matter of custom and practice. For example, they write:

…We must 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.[10]

It is worth remembering that I am not, in fact, the first to say this. Anyone who reads my article and is familiar with the subject would know this. I will quote here from three of the most explicit sources I quoted in the article:

1. Rabbi Yehoshua Babad

R. Babad writes in his responsa (Sefer Yehoshua 89):

The basic principle is that any part of the body which is always seen, and which it is not the common practice of women to cover, and which men are used to seeing, is not considered ervah; people are not stirred by such because they are used to seeing this, and no biblical prohibition is involved at all [in uncovering them]. But when body parts that are customarily covered are partially exposed and people find this stirring, then it is considered ervah and it is biblically prohibited [to uncover them]… The Gemara was thus impelled to answer that biblically, having one’s hair exposed but braided is sufficient, but according to dat Yehudit even braided hair is also forbidden, since the practice of women was to go out with their hair covered by head-scarves, then in that era in particular going with braided hair was considered to be brazen, and women who did so violated dat Yehudit. But were it the practice of all Jewish women to go with their heads entirely uncovered, there would be no prohibition at all, even for married women… even were the opposite to be the case, that married women went with their heads uncovered and single women covered their hair, it would be forbidden for single women to go without their heads covered, but permissible for married women.

2. Rabbi Yosef Messas

In a letter on the subject of women’s hair covering (Collected Letters 1884),[11] R. Messas writes:

Know, my child, that the prohibition of married women to uncover their hair was quite strong in our community, as it was in all of the Arab lands, before the influx of French Jewry. However, in short order after their arrival, the daughters of Israel transgressed this law and a great dispute arose amongst the rabbis, sages, and God-fearing learned masses… Now all women go out with uncovered heads and loose hair…Consequently, I have devoted myself to find a justification for the current practice, for it is impossible to fathom that we can return to the status quo ante… Accordingly, now that all the daughters of Israel have agreed that hair covering is not an indication of modesty, and certainly the absence of a head covering carries no disgrace… this prohibition has been uprooted from its foundation and become permissible. …The upshot of all this is that hair covering for women is only obligatory from the standpoint of custom alone.

3. Rabbi Moshe Malka

R. Malka expresses his essential agreement with R. Messas’ position in a responsum (Va-Heishiv Moshe 35):

…After close analysis of the words of our Master [R. Yosef Karo], OH 75:2, I saw that the great Rabbi [Messas] was indeed correct… One sees that women’s hair is considered ervah only when it is covered and in a place where women normally cover it. But when it is uncovered and in a place where women normally do not cover it, it is not considered ervah. The reason is that hair which is normally covered but has become exposed leads to erotic thoughts; but this is not the case where it is always exposed: it does not give rise to erotic thoughts in people who are accustomed to seeing it all the time, as in the case of single women—there is no prohibition when the hair is always uncovered [in that society]…. Thus the position of [R. Messas] now stands, that this matter is based on local practice, and wherever the entire local populace goes with their heads uncovered, there is no issue of erotic thoughts. And it seems that women nowadays rely on this, as they go about with their heads uncovered in the markets and streets and no one protests, for they have something to rely on.

Furthermore, we can now add to this list as a fourth source, the clear and direct view of the Ben Ish Chai quoted above.

Rabbis Ifrah and Wiener are certainly aware of these sources and even quote a piece of my response to R. Shulman that references them. However, instead of recognizing that at least these authorities either would or do permit married women in modern society to go out with their hair uncovered, they avoid addressing the works of these achronim by saying that the reasons offered by these authorities are not identical to the reasons I give.

It is rather difficult to understand this assertion as I advance many arguments in my article, some of which dovetail with these authorities and some of which do not. Moreover, this claim hides the fact that these authorities explicitly permit married women to go out with their hair uncovered. This is exactly the position I am advocating as a limmud zechut!

The above authorities are, of course, a distinct minority of poskim, and the argument about the subjectivity of women’s modesty requirements certainly does not represent the consensus of the gedolai Aharonim in regard to hair. Nevertheless, it is important to understand that I am not the first to say that hair coverage could be a matter of social customs and practices; this is not a position I invented out of whole cloth, but represents a well-trodden path of a number of halachic decisors (poskim) over the past few centuries. My contribution was simply an attempt to explore this position and ground it more solidly in more traditional sources—thus offering some justification for women who implicitly follow it.

B. Tur, Shulchan Aruch, and Levush

Rabbis Ifrah and Wiener do not make my reading of the Tur, Shulchan Aruch, and Levush the key to their critique. Nevertheless, they do attempt to offer a number of alternative reads for these sources to counter the one I suggested. Primarily, they argue that the reason these three works change the category of uncovered hair from dat Moshe to dat Yehudit is because there is no difference between the two categories, practically speaking.[12]

Although this is a possible interpretation of these sources, it leaves them unable to answer the question I raised in my response to R. Shulman; namely, if Rabbis Ifrah and Wiener are correct, where do we see a source to limit the prohibition of exposed hair to married women? Even ha-Ezer 21 clearly states:

Jewish women should not go out to the market with their hair exposed, whether single (penuya) or married.

The simple reading is that all women must cover their hair according to halacha. There are only two ways out of this: either to argue that single means divorced or to argue that this reflects the subjective standards of the Sephardic/Arab world, where all women did cover their hair. The former argument, although suggested by several Aharonim,[13] runs afoul of the very next words of the Tur:

But it is permitted to gaze upon a single woman (penuya) – whether a virgin or previously married – in order to determine whether he finds her attractive, for the purpose of marriage.

It is more than a little difficult to believe that the Tur means two different things by the same word in the same sentence. This is why I argue that the latter is the correct position. Furthermore, this clarifies the tension between Even ha-Ezer and Orach Chaim, as the former implies that all women cover their hair and the latter that only married women do. I have argued that the Even ha-Ezer passage, as a quote from Rambam, reflects the practice in Arab countries and that the passage from Orach Chaim, a quote from Ra’aviah, reflects the practice in European countries.

Although I cannot deny the possibility that they are right, I may be forgiven for suggesting what seems to me to be a much more plausible alternative. Why the Tur may have thought that this was the view of the Rosh is the subject of the next section.

C. Rosh and Tosafot

In my article, I suggested that in veering from the formulation of Rambam, the Tur might have been basing himself upon the position of his father, the Rosh.

Rabbis Ifrah and Wiener deal with my reading of several statements of the Rosh. I would not claim that their alternative reading is obviously less valid than mine, and although I still prefer my own, I admit that more than one interpretation is possible. What I do find problematic is that they spend several pages on those readings, but dismiss in a short sentence the one source where the Rosh seems to be absolutely clear about his understanding, i.e. in the Tosafot ha-Rosh.. The Tosafot ha-Rosh (Gittin 90) restates the position of the Tosafot, and is commenting on a perceived contradiction between the text in Gittin and the text in Sotah. Here is the text of the Tosafot ha-Rosh:

“Do you really mean to say [he sees her] bathe with other men?” – Rashi of blessed memory explained that if that were the case, there would be circumstantial evidence that she is unfaithful and thus forbidden [to her husband], and the Talmud would not have said in that case one ought to divorce such a woman, but rather one must divorce her. If you challenge this by saying, if that is true, then certainly one must also divorce a woman who goes out with her head uncovered because she violates dat Yehudit, yet it is an unresolved question in Sotah (25a) as to whether or not a husband may choose to stay married to such a woman [and the Talmud does not draw such an inference]. One may answer that there [in Sotah] the violation was rabbinic [and so one need not in fact divorce such a woman], but here [actually bathing with other men] would be a biblical violation…

To understand this, Tosafot, followed by Tosafot ha-Rosh, interpret the term “dat” in Sotah to refer to dat Yehudit. They further understand that one may remain married to a woman who violates dat Yehudit but not a biblical prohibition. The specific example brought is of a woman who goes out with uncovered hair, and thus—according to Tosafot ha-Rosh—violates a dat Yehudit, a rabbinic modesty infraction.

One could, perhaps, argue that Tosafot and Tosafot ha-Rosh are referring to a woman who goes out wearing only a partial covering (a kalta), but this is extremely hard to believe, as there is no indication in the text that this is the (unusual) reality they are envisioning.

Rabbis Ifrah and Wiener dismiss my citation of the Tosafot ha-Rosh so concisely as to be cryptic:

The Tosafos HaRosh in Gittin, cited by R. Broyde, is another simple citation of the text of the Mishna.[14]

I do not know what this critique is supposed to mean. I can only say that the contrary is true. The word Yehudit was added by Tosafot and Tosafot ha-Rosh. If they believed that a woman going out with her hair exposed was a violation of dat Moshe, why add the word Yehudit? The word “dat” on its own, which is what appears in the text of Sotah, would be perfect, as it would imply that she could be violating either, depending on the degree of her hair’s exposure. But they clarify that ambiguity in Sotah by clearly stating that a woman’s uncovered hair is a violation of dat Yehudit.

Additionally, the fact that the Rosh, Tur, Tosafot, etc. believed that uncovered hair was meant in the Mishnah as a sign of promiscuity is supported by the view of one of the Rosh’s “grand-students.” R. Menachem ben Aharon, the author of the Tzeidah la-Derech and a student of R. Yehudah son of Rosh, makes this point explicitly:

And what is dat Yehudit? Going out to the marketplace or through an alley or courtyard which many people frequent in the manner of promiscuous women.

It was with all this in mind that I read the Rosh’s other statements the way I did. I will not go in to the many interpretations offered by myself, R. Shulman, and Rabbis Ifrah and Wiener. However, I would like to underline my main point from the Rosh’s comments in Ketubot. He writes:

The rule that a woman who violates das Moshe and das yehudis does not receive her kesubah payment applies specifically to cases in which she causes her husband to sin or to come to harm (“hi machshilaso”), such as those in our Mishna and the like—for instance, feeding him forbidden fats or blood, or making vows and not fulfilling them (for one’s children [die on account of this sin]). However a woman who violates other prohibitions, such as if she herself were to consume a forbidden item, does not forfeit her kesubah. With regard to das yehudis, the husband is able to deprive his wife of her kesubah on account of her brazenness (“chatziphusah”) and on account of the suspicion of infidelity (“chashad zenus”).[15]

The simple read of this is that violations of dat Yehudit humiliate the husband, which is why he would not have to pay her ketubah should he divorce her. Violations of dat Moshe, on the other hand, forfeit her ketubah payment in the case that they cause the husband to sin or the death of his children. All other sins committed by the woman are irrelevant when it comes to ketubah payments.[16] My argument is simply this: Since this definition precludes considering a woman going out with her hair uncovered to be in violation of dat Moshe, the Rosh must believe it is a violation of dat Yehudit. This interpretation is supported by the Tosafot ha-Rosh and Tosafot referenced earlier. The objection that this does not seem to fit into the Gemara is an important one, but it doesn’t change the meaning of the words.

D. Ketubot vs. Berachot

In my original article, I suggested that Tosafot, the Rosh, and the Tur may have assumed that the Talmudic analyses in Ketubot and Berachot disagreed about the nature of the requirement for a woman to cover her hair, a mahloket ha-sugyot. Rabbis Ifrah and Wiener reject the idea categorically, stating that there is no reason to see tension between the two discussions.

Saying it does not make it so; the disagreement between these two sources is worth noting. The sugyah in Ketubot states that women going out with their hair exposed violate a biblical prohibition based R. Yishmael’s inference from a verse in Numbers. The sugyah in Berachot labels women’s hair ervah (nakedness) based on a verse in Song of Songs. Unless Berachot is disagreeing with Ketubot, why would R. Sheshet (an amora, living later than R. Yishmael, the rabbi of the discussion in Ketubot) use a verse in Song of Songs when the earlier and more authoritative Tannaitic midrash had derived this from a verse in Numbers? There are several plausible explanations, but it seems reasonable to say that R. Sheshet did not consider the midrash of R. Yishmael halachically binding or correct, and therefore, he required a different verse.

Further evidence that the sugyah in Berachot sees this matter differently than Ketubot is that all the derivations in Berachot are really asmachtas, a hint for a rabbinic decree, and the derivations in Ketubot are derashot, genuine laws learned from verses. That would explain why the verses in Berachot quoted all refer to parts of the body or actions that would be considered somewhat provocative at the time, thus requiring more rabbinic interpretation into which category they fit. Verses that refer either to obviously sexual or non-sexual parts of the body are not quoted in Berachot.[17] Since verses in the Song of Songs describe almost every part of a woman’s body,[18] this was clearly a conscious choice, meaning any derashot here are not verse driven but stem from a pre-existing notion of what parts of a woman’s body (or what behaviors) are borderline erotic.

Furthermore, Berachot does not address a specific prohibition for women to dress immodestly. The only halachic significance the Talmud finds for its discussion of provocative dress or behavior is how women’s choices affect men.

Understanding the flow of the passage in Berachot makes this clear. Rabbi Yitzchak states than even a handbreadth of a woman is ervah, and the Gemara discusses this by noting that maybe Rabbi Yitzchak is suggesting a prohibition to look at women in general. However, this idea is countered by the already-stated principle of R. Sheshet that staring at any part of a woman, erotic or not, is forbidden. The only alternative possibility the Talmud can think of is that the halachic significance of Rabbi Yitzchak’s statement is that a man could not say the Shema in a woman’s presence if she was thus exposed. Why does the Talmud not simply suggest that the significance is that a woman should thus not be permitted to appear this way in public? It would seem that this is not a halachic category this sugyah recognizes, despite the derasha in Ketubot that states just that.

E. Shmuel vs. Rabbi Yohanan in Ketubot

I further suggested that even the sugyah in Ketubot itself is unclear as to whether the position of Shmuel[19] is accepted as binding. Rabbis Ifrah and Wiener repeat R. Shulman’s assertion that “this can hardly be entertained even as pilpul.” Let me spell out more clearly what I am suggesting.

The sugyah begins by pointing out that the Mishnah in Ketubot seems to be in tension with a midrash halacha. Whereas the Mishnah, by placing exposed hair in the category of dat Yehudit, implies that the act is one of maintaining a societal norm, the midrash halacha states that the Torah specifically commands women not to go out with their hair exposed. The normative statement in the Talmud makes it problematic that the Mishnah would list the practice as only a violation of dat Yehudit. Is there any way, the Talmud wonders, to remove this tension and understand the Mishnah and the midrash as being in agreement?[20]

Rav Yehudah, quoting Shmuel, suggests that there are levels of exposure when it comes to hair. The Torah only forbids a woman going out with her hair fully exposed, whereas dat Yehudit extends that to going out with a hairnet or braids. The midrash, then, referred to the absolute prohibition of complete exposure; the Mishnah, on the other hand, focused on the requirement for a married woman to fully cover her hair.

I find this to be a classic example of a counter-intuitive solution (שינויא דחיקא) since both the midrash and the Mishnah use the exact same term: “exposed hair.” It is surprising to suggest that when the midrash says a woman may not go out with exposed hair, it should be understood to be permitting partial covering (kalta), but when the Mishnah sees exposed hair as a violation of dat Yehudit, it means to prohibit going out even with kalta!

It is for this reason, perhaps, that the Gemara then presents R. Yohanan’s suggestion, which seems at odds with Shmuel’s. The simple understanding of R. Yohanan in this context is that the term “exposed hair” does not include a hairnet or braids and that in certain contexts, women could even go out wearing only that type of covering/hairstyle. This seems to oppose Shmuel’s answer that says hairnets and braids are not a matter of partial covering, but partial exposure. For R. Yohanan, neither the midrash nor the Mishnah could be referring to women with kalta, as the term “exposed hair” never means this. Hence, the midrash and the Mishnah contradict, according to R. Yohanan, and we follow the Mishnah.

The Yerushalmi can easily demonstrate the fact that this reading is more than just “pilpul.” The Yerushalmi on this Mishnah records R. Yohanan’s position as an independent gloss on the Mishnah, with no reference at all to a contradiction between it and a midrash and no reference Shmuel’s (or anybody’s) solution to this problem. This explanation harmonizes the Bavli with the Yerushalmi, and as the Kessef Mishneh (Gerushin 13:18) notes, “Any way that we can interpret the Bavli to prevent it from arguing with the Yerushalmi is better, even if the explanation is a bit forced (דחוק קצת).”

Again, this is not the only possible read, but this does not mean it should be summarily discounted.

F. Miscellaneous Specific Points Made by Rabbis Ifrah and Wiener that Deserve a Response

1. Quoting the Mishnah Without the Gemara

In their review, Rabbis Ifrah and Wiener make the following assertion:

R. Broyde assumes that an unmodified citation of the Mishna 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 Mishna; 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 Mishna 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.[21]

Rabbi’s Ifrah and Wiener seem to infer that any reference to the Mishnah, in whatever context, automatically incorporates the Talmudic sugyah’s interpretation of that Mishnah. In my opinion, this claim is not true, as it fails to take into account the various genres—the various assumptions, interpretations, and inferences—in rabbinic writing on and particular Mishnah.

I certainly agree with Rabbis Ifrah and Wiener that when a Mishnah alone is referenced correctly and carefully in a discussion of another topic, it may be understood as a shorthand reference to its sugyah and not a formulation of the actual halacha on that topic as seen by that writer. This is why when I referenced the responsum of Rif (73), I said that it was only a possibility that he believes all hair covering to be dat Yehudit, since the responsum was primarily interested in the category of women who act flirtatiously with other men.

However, when a Mishnah is referenced in the appropriate section of a halachic treatise without the Gemara, things are a bit more complicated. It is certainly possible that an author is merely putting forward a summary overview and did not intend to be thorough or that he may have the Gemara in mind as normative despite not quoting it. So for example, the Behag who quotes only the Mishnah with no modification may not mean anything more by this than a short reference. However, the same cannot be said for works which offer more detailed presentations or which can be seen as responding to other works.

For example, I pointed out that just like the Tur and Shulchan Aruch “changed” the formulation of the halacha to reflect the Rosh and Tosafot and not Rambam, so too the Semak changed the formulation of the halacha from that of the Semag (who follows Rambam) back to that of the Mishnah. One cannot just claim here that the Semak simply preferred the Mishnah’s text with all its ambiguity, but really believed the halacha was in line with the formulation of the Semag, as it is well known that R. Yitzhak of Corbeil wrote his work with the specific intention of taking the Semag and “de-Rambaming” it.

A similar argument stands for cases like that of the Sefer ha-Ittur, the Ritvah, and the Kol-Bo. These works quote the Mishnah and then modify it with certain pieces of the Gemara and not others. This is not a case of simple shorthand writing but represents a conscious choice by the authors to elucidate the Mishnah with the pieces of Talmudic commentary that seemed to them to be normative statements of halacha — statements that effectively capture the Mishnah’s halachic explication.

One can quibble about particular sources or cases, but what should be clear is that Rabbis Ifrah and Wiener are painting with too broad a brush and making a generalization worth noting. Essentially, their axiom is really no axiom at all.[22]

2. Ritvah

In reference to the previous section, the Ritvah is one of the Rishonim who implies that a woman exposing her hair violates only dat Yehudit.[23] His reasoning might stem from his interpretation of Kiddushin 82a. There, the Ritvah quotes examples of righteous men violating or ignoring prohibitions meant to distance men from women. Since it makes no sense to argue that rabbis have a dispensation to violate halacha, the Ritvah explains their conduct by suggesting that the halachot about a man distancing himself from behaviors that may lead to sexual impropriety or lewd thoughts are subjectively determined.

Rabbis Ifrah and Wiener respond by writing:

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.[24]

I am not sure which laws in particular Rabbis Ifrah and Wiener are referring to, but my overall answer to this claim is that it is the view of the Ritvah that some of the laws found in the Shulchan Aruch Even ha-Ezer on matters of sexual impropriety need not be followed in a time and place where they are no longer sexually improper. Furthermore, that point is made exactly by the Pitchai Teshuva in Even ha-Ezer 21 who quotes this exact Ritvah to explain why we do not observe some of the prohibitions found in the Shulchan Aruch Even ha-Ezer 21! The Ritvah believes that all of the prohibitions categorized as “removing a person from sexual impropriety” are subjectively determined. This is why, nowadays, people greet each other’s wives all the time, although this is specifically forbidden in the Talmud.

This position is not only the Ritvah’s, but it is Tosafot’s as well in Kiddushin 82a[25] and it is clearly the normative position of halacha nowadays, being cited by the Rama in Even ha-Ezer 21:5. Also, if one still feels unsure of this point, keep in mind that it is commonly permitted by almost all poskim for a male doctor to perform a gynecological exam on a woman who is not his wife—not because no other medical care is accessible, but because this doctor is on the “in network” health insurance plan or otherwise might be the convenient one available. And certainly, this wouldn’t be grounds permitting an issur. The reason this conduct is permitted is because non-sexual touching is permitted, as a matter of halacha, and this is a subjective determination, as the Ritvah notes.

Going back to my argument in the article, my point was simply that perhaps the reason the Ritvah seems to categorize uncovered hair as dat Yehudit is because he believes that, by their very nature, laws about modest dress are subjectively determined based on time and place, just like he argued explicitly with regard to modest behavior. Again, this is not the only possible interpretation of the Ritvah, but it remains, in my opinion, a reasonable one.[26]

3. Ra’aviah

Similar to my argument with regard to the Ritvah, I claimed that the reason Ra’aviah does not mention uncovered hair as part of dat Moshe is because he believes that the sugyah in Berachot supersedes the sugyah in Ketubot. Giving the matter further thought, I grant that Ra’aviah’s quote of the Mishnah in Ketubot is not really an indisputable proof that he believes the Gemara is not normative, since it could just be a shorthand reference. Nevertheless, I do believe that there is a strong possibility that Ra’aviah’s understanding of Berachot would preclude him from believing that there could be an absolute biblical prohibition for married women to go out with their hair exposed. Ra’aviah writes:

All the things which we mentioned above as ervah, are particularly when they are not generally exposed. But an (unmarried) maiden who generally exposes her hair need not be concerned, and the same applies to a woman’s voice [for those who are accustomed to hear it].

Ra’aviah’s definition of ervah is that which is generally covered. Although one could interpret this as relevant only to the recitation of Shema, one could also apply it as a general law of modest dress (this is the position of R. Yehudah cited in the Or Zarua, among others.) If the latter is true, there would be an automatic application to the laws of the ketubah, and one would be required to state that in a society where women generally do not cover their hair, there would be no violation of dat, and the woman would not lose her ketubah. Therefore, through this interpretation by Ra’aviah, uncovered hair wouldn’t fall within the parameters of dat Moshe. This would fit well with the position of the Rosh, which is outlined above.

In response to this argument, Rabbis Ifrah and Wiener write:

Even if one were able to derive from Raaviah that the general prohibition to uncover the thigh and other limits is dependent upon local custom, this cannot be the case with regard to hair. The fact that the Gemara in Kesubos cites a different verse than that of Brachos would indicate a more rigid application of that prohibition. Raaviah would have no reason to create a machlokes hasugyos when there is a clear way to reconcile the two.[27]

This argument suffers from a number of problems. First, it is factually incorrect. The Or Zarua, for instance, states this interpretation explicitly with regard to hair:

That which Shmuel said: A woman’s hair is considered ervah, as it says, “Your hair is like a flock of goats,” my teacher R. Yehudah b. Yitzchak explained as not dealing with the recitation of the Shema.[28]

Second, why would the fact that the two gemarot cite two different verses indicate a “more rigid” application? Perhaps if one reads the two sugyot in tandem, one could suggest that there are two separate prohibitions on a woman going out with her hair uncovered, but this is difficult to understand. Is there something more provocative about a woman’s hair than her voice or leg?

This is why I suggested that the existence of two derashot implies a mahloket ha-sugyot, as I explained above. Rabbis Ifrah and Wiener may claim that there is “no reason to create a mahloket ha-sugyot” since “there is a clear way to reconcile the two,” but I beg to differ. The reconciliation of the sugyot is not easy, and mahloket ha-sugyot is an eminently reasonable way to deal with the problem.

To clarify why, in their opinions, Ra’aviah cannot believe there is a mahloket ha-sugyot here, Rabbis Ifrah and Wiener further argue:

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 prias rosh, and the Brachos passage with the subjective (according to this understanding of Raaviah) prohibition of reciting Shema in front of ervah.[29]

In my opinion, this argument misconstrues the purpose of the overall sugyah in Ketubot. As mentioned above, whether the overall purpose of the sugyah in Berachot is to deal with the laws of Shema or the laws of modest dress is a matter of dispute among the Rishonim. However, the overall purpose of the sugyah in Ketubot is not, as Rabbis Ifrah and Wiener contend, to discuss the laws of modest dress. Rather, its purpose is to delineate what is considered a violation of dat Yehudit such that the husband is no longer required to make the ketubah payment upon divorce.

This is a critical point. Once one recognizes that the main concern of the sugyah is to discuss the parameters of the violation of dat Yehudit, it becomes possible to argue, as I did above, that the midrash of R. Yishmael and Shmuel’s response are really tangential to the sugyah. Hence it is not surprising that the remainder of the sugyah discounts them in favor of R. Yohanan and that the sugyah in Berachot does not even take R. Yishmael’s derasha into account when delineating its own modesty requirements.

Finally, Rabbis Ifrah and Wiener claim:

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.[30]

It is true that my reading of the sources as a mahloket ha-sugyot is not stated explicitly by others. Nevertheless, there are authorities who have a like understanding of Ra’aviah, the Rosh, and the Tur.[31] For example, R. Moshe ibn Habib (EH 126), discussing the question of whether betrothed women need to cover their hair, writes:

It seems simple, in my humble opinion, that since they have already developed the practice of going with their hair uncovered, there is no need for concern, as Rosh wrote at the end of the third chapter of Berachot, regarding the statement of R. Sheshet that the hair of a woman is considered ervah, that this applies specifically to married women, who normally cover their hair, but for unmarried women to normally go with their hair uncovered is permissible. So also wrote the Mordechai, citing Ra’aviah; the Hagahot Maimoniyot, Hilchot Keri’at Shema 3:[60]; Tur, Orah Hayyim 75; and our master [the Mehaber, ibid. 75:2]. If you are inclined to dismiss this and say that there can be no proof from these sources, as they are all speaking about a single woman, but with a betrothed woman it would be forbidden—that argument is void. Consider the reasoning behind why the decisors ruled that it is permissible for single women: since they do so regularly, it does not arouse improper sexual thoughts, and the same is true in our case.

R. Habib believes that one can extrapolate from Ra’aviah’s reasoning that all the laws of modesty, including hair covering, are sociologically determined. This is, essentially, how I interpreted Ra’aviah as well.[32]

4. Rashi

Rabbis Ifrah and Wiener strongly oppose this possibility that Rashi could consider hair covering subjective. Thus, as their concluding sentence to their section on Rashi, they write:

…It is clear that the two explanations given by Rashi are both consistent with the notion that fully uncovered hair violates das Moshe.[33]

But I am not the first person to suggest that one of Rashi’s two explanations in Ketubot may imply a subjective, as opposed to objective, prohibition. I will not rehash the many different (and sometimes contradictory) attempts to use Rashi as part of my limmud zechut. I will simply cite here two precedents from eminent Aharonim who did the same:

R. Yeruham Perlow (Sefer Hamitzvot Aseh 96)

There is no question according to the first explanation of Rashi, for we can say that this means from the fact that we disgrace her in this manner commensurate to her act of making herself attractive to her lover [by uncovering her head] we can infer that it is forbidden…. However, according to Rashi’s second explanation, which he indicated to be the main explanation, there is a great difficulty: Just because [not going with their heads uncovered] was the practice of the daughters of Israel, must we say that it has the status of a biblical prohibition? Perhaps it only has the status of a custom that the daughters of Israel adopted of their own accord. And even though this custom is mentioned in the Torah, it nevertheless does not generate a biblical prohibition … if so, then what is the source for the prohibition of going with one’s hair uncovered… Perhaps one might answer that we do not derive a biblical prohibition from the verse itself, but because the verse teaches us that such was the custom of the daughters of Israel, we conclude that this is a matter of promiscuity and leads to sexual immorality; accordingly, such conduct would itself be biblically forbidden as it falls into the category of “Do not place a stumbling block before the blind.”

R. Yosef Messas (Collected Letters 1884)

The difference between the two explanations [of Rashi] is that according to the first, it seems that the reason the Kohen uncovers her hair is in order to publicly disgrace her… this seems to imply that it is prohibited for us to uncover a woman’s hair in public to disgrace her for no reason, but in order to punish her commensurately, the Torah permitted this prohibited act to be done in order to disgrace her. However, she herself has no prohibition to go with her head uncovered, for if she wishes to disgrace herself, she may do so at any time. Accordingly, now that all the daughters of Israel have agreed that hair covering is not an indication of modesty, and certainly the absence of a head covering carries no disgrace… this prohibition has been uprooted from its foundation and become permissible…[34]

Indeed, my original article quotes many other Aharonim adopting one or another explanation of Rashi. Obviously, the above two interpretations are contradictory to each other, and one can debate the convincing nature of either of them. My point is only to demonstrate that Rashi’s intention is, in fact, a matter of dispute among the Aharonim, and there is nothing unprecedented in attempting to use one of his formulations to defend the position that women’s hair covering is a subjectively determined and perhaps might not necessarily be a biblical requirement. So to, this understanding of Rashi supports a limmud zechut for women who follow this position.

5. R. Yaakov Reisher

In his Shevut Yaakov, Rabbi Yaakov Reisher makes a strong argument that the meaning of kalta in the Talmud is braids, not workbasket or hairnet. This position is accepted by a number of authorities. Rabbis Ifrah and Wiener do not dispute this as a viable interpretation of halacha. Instead, they write:

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 prias 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.[35]

First, it would seem that Rabbis Ifrah and Wiener agree here that there is a legitimate position in halacha that married women may go out in public with their hair braided. I am happy that we at least agree on this point.

Second, although I admit that I may have been pushing the position by claiming that disheveled is the same as unbraided, I think that Rabbis Ifrah and Wiener have gone too far in the other direction, making the extremely disputable statement that “any grooming short of braiding is indisputably included in the prohibition.” R. Reisher’s point is that free-flowing hair has an erotic quality and that is why it is prohibited biblically. It would seem to me a reasonable understanding of the Shevut Yaakov’s position to claim that grooming methods other than braiding which undo the free-flowing and erotic quality of women’s hair would also remove the biblical prohibition. Hence, I would argue that the Shevut Yaakov would plausibly permit short hair, hair done up over the head, or other similar hair arrangements.

6. Maharam Al-Shakar and the Kaf ha-Hayyim

Considering the critiques in R. Shulman’s and now in Rabbis Ifrah and Wiener’s article, I would like to reframe my position on the Maharam Al-Shakar. First of all, I concede that my translation of the Kaf ha-Hayyim was too broad, and I thank Rabbis Shulman, Ifrah and Wiener for the correction. That said, I think that, unfortunately, the importance of Maharam Al-Shakar’s responsum has been lost in the shuffle.

Maharam Al-Shakar was responding to the question of whether a man could recite Shema in the presence of a woman who has wisps of hair protruding from her head covering. The background to the question is that observant Jewish women in various communities differed in how much hair they covered. Maharam Al-Shakar writes (35):

It is clear that there is no need to be concerned for that hair at all, because the practice is to expose it—even with regard to the recitation of the Shema. The rule that a woman’s hair is considered ervah only applies to hair that women normally cover…but that which is regularly uncovered and which a man is comfortable seeing is permissible, even as we have explained. So have written the great commentators of blessed memory, as did Ra’aviah…

Maharam Al-Shakar continues by arguing that if a woman were to move from a place where women cover these hairs to a place where women do not, she could then follow the custom of the place and stop covering them, assuming she does not intend to return. This position is then quoted as normative by Magen Avraham and Kaf ha-Hayyim.

Rabbis Ifrah and Wiener, following R. Shulman’s lead, argue that this responsa cannot be used to determine Maharam’s position regarding hair covering or modesty in general. The responsum is dealing with a level of “hair-coverage” more extensive than that discussed explicitly in the Talmud.

Possible as that may be, it is equally possible that Maharam Al-Shakar’s analysis indicates that he understood the laws of modesty and hair covering to be socially and subjectively determined, as I suggested was reflected in Berachot and Ra’aviah’s understanding. In fact, this is the exact argument of R. Yosef Messas (Responsa Mayyim Hayyim, 2:110):

Maharam Al-Shakar, responsum 35, wrote in the name of Ra’aviah that the Talmudic statement that the hair of a woman is considered ervah, etc. is limited to the recitation of the Shema and to hair that it is their practice to cover… Thus, nowadays when women worldwide have abandoned the ancient custom and reverted to the simple practice of not covering their hair, it in no way indicates a deficiency in their modesty or promiscuity, God forbid.…

Again, R. Messas’ understanding of Maharam Al-Shakar is not the only possible one, but it is also not to be casually dismissed, especially since I already demonstrated how plausible this was as a reading of Ra’aviah.

Let me add one other point: R. Moshe Malka, who accepts R. Messas’ position as normative, claims that this is also the position of the Kaf ha-Hayyim as well, not because of his use of the Maharam Al-Shakar/Magen Avraham, but because of his quote from the Hukkei Nashim of the Ben Ish Chai. Now that the Arabic text has been retranslated with more accuracy,[36] (and the Kaf ha-Hayyim certainly was reading the original Arabic) R. Malka’s (and my original) understanding may well end up being correct after all.

7. Terumat ha-Deshen and the Idea of the Subjective Dat Moshe

Finally, Rabbis Ifrah and Wiener argue forcefully and at length that my use of the Terumat ha-Deshen was entirely misleading. Their main point is that since Terumat ha-Deshen believes that the prohibition against exposed hair is rabbinic, and since it is an interpretation of Rambam, using it in this context would demonstrate only that dat Moshe—which is Rambam’s holding on hair exposure—could in certain cases refer to rabbinic prohibitions. This was actually the point I was making in my article, and thus, we are in agreement.

However, Rabbis Ifrah and Wiener correctly point out that at times in my article I overstated my case and implied that Terumat ha-Deshen believed that the uncovering of hair was actually dat Yehudit, even putting him in the list of Rishonim who argued this. They write:

In a particularly egregious example… he includes Terumas Hadeshen in his list of Rishonim who he claims hold uncovered hair to be das yehudis (conclusion of article, p.174). Apparently, the mere fact that Terumas Hadeshen informs us that Rambam understands the prohibition to be rabbinic (as cited by R. Broyde on p.134) is utilized as a basis to label it das yehudis. This postulation ignores that Rambam – upon whom Terumas Hadeshen is commenting – explicitly classifies it as das Moshe.[37]

I agree. Rabbis Ifrah and Wiener are correct that it is impossible to categorize Rambam, and the Terumat ha-Deshen who explains him, as believing that exposed hair is a violation of dat Yehudit. I thank Rabbis Ifrah and Wiener for this correction. I should have noted that Terumat ha-Deshen could be adopting the view that Rambam accepted the notion of a subjective dat Moshe.

The idea that Rambam and Terumat ha-Deshen believe that the prohibition for a married woman to go out with her hair uncovered is subjectively determined and can change based on their social norms is not difficult to understand, even as it remains a dat Moshe. Once one thinks—as the Terumat ha-Deshen does in the name of Rambam—that hair covering is a rabbinic obligation for all, then the obligation can easily be understood as a subjective dat Moshe, which changes as social norms change. Let me explain at some length this idea.

Why did Terumat ha-Deshen (242) think that Rambam understood the obligation of hair covering to be rabbinic? I suspect it’s because Rambam never distinguished between the obligation of single women and married women to cover their hair. Terumat ha-Deshen is arguing that since it is inconceivable that a single woman has a Torah obligation to cover her hair, and since Rambam puts together single and married women’s obligation, it stands to reason that there is no Torah obligation for anyone—neither single nor married—to cover their hair.

But still, doesn’t Rambam say that covering hair is a dat Moshe? I think Terumat ha-Deshen would answer: It is a dat Moshe, but dat Moshe only means “something found in the Torah” and nothing else. Since the Torah says “u-parah et rosh ha-isha,”[38] hair covering becomes a historical dat Moshe. This might be exactly what the Meiri (Ketubot 72a) is referring to when he states, “Dat Moshe is the category governing a mitzvah written in the Torah or hinted at in the Torah.” Hair covering is hinted at in the Torah and thus the obligation to cover is technically speaking a dat Moshe. Of course, (and this is exactly why Terumat ha-Deshen indicates that explicit the obligation to cover is in reality rabbinic) just like single women do not have to cover their hair when modest single women in society stop covering their hair, the same is true for married women as well.[39]

Essentially, according to Rambam, hair covering is a dat Moshe but only in the historical sense, meaning that it is found in the Torah of Moshe; it functions, however, like a dat Yehudit, in that it can change according to time and place. I should have been clearer, although the functional difference between a subjective dat Moshe and a subjective dat Yehudit is purely historical in this view.

G. Summary of My Response to Rabbis Wiener and Ifrah

After all the give and take, I think I have shown that we are left with Aharonim who either would permit (R. Babad) or do permit (Ben Ish Chai, R. Messes, and R. Malka) modern day married Jewish women to go out with their hair exposed. To buttress this position, I suggested—and continue to believe as a possibility— that the Tur, Shulchan Aruch, and Levush can be read as being in consonance with this position, since they seem to characterize all hair covering as dat Yehudit. Further, I noted that their position may be based on the reading of the Rosh and Tosafot in Gittin, who formulated this idea from the Gemara.

That view would be well explained if the Rosh and Tosafot thought there was a mahloket ha-sugyot between Berachot and Ketubot. Perhaps they believed that the sugyah in Ketubot, and specifically the midrash with Shmuel’s harmonization, is not normative. Finally, I suggested the possibility that the sugyah in Ketubot itself did not consider Shmuel’s position to be normative and that R. Yohanan’s position, and the remainder of the discussion in the Gemara, was being in tension with Shmuel and the midrash.
This is, in short, my limmud zechut for observant women who do not cover their hair and my defense of the explicit ruling of the above listed Aharonim.

Conclusion

I conclude with three points.

First, I worry about the tone of discussion within our Orthodox community, because I see less reasoned dialogue and more conclusory language and strident tone. We need to recover our sense of how discourse about Torah matters ought to take place, although I have no immediate recommendations for how to do so. I can only say that we will bear terrible communal consequences if the level of civil discourse continues to fall. We should worry that our rhetoric will drive learned Jews into other disciplines, leaving the leadership of Orthodoxy to those willing to bear spiteful and ad hominem attacks. I doubt this is good for us.

Second, providing justifications for the common practices of the Orthodox community of previous generations is healthy and proper; they are our family, and we should be proud of how they conducted themselves, even if we conduct ourselves differently. Part of our respect for previous generations, especially the generation of leadership that built Orthodoxy in the US, should involve our avoiding as much as possible the conclusion that they acted without any foundation at all in Jewish law—on this or any other topic. I wrote my original article to provide some explanation and reasoning for such practices in a technical halachic sense and to prevent others from merely positing that uncovered hair by a married woman is a violation of Jewish law with no rationale or justification.

Third, as the reader can see, I acknowledge some small errors and inaccuracies in my original essay—even as the overall argument has only been strengthened by being called to respond to these substantive critiques. I appreciate the opportunity given to me by Rabbis Ifrah and Wiener to hone my thoughts, and I await their reply.

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[1] See “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)” Tradition 42:3 95-179 (2009). See http://www.traditiononline.org/news/_pdfs/0095-0180.pdf. In this reply, I have occasionally not provided references to some of the sources cited as they are all cited in the original article.
[2] See “Hair Covering and Jewish Law: A Response” Tradition 43:2 73-88 (2010) and “Hair Covering and Jewish Law: A Response” Tradition 43:2 89-108 (2010).For an explanation of what is a limmud zechut, see pages 107-108. For both of these articles, see http://www.traditiononline.org/news/_pdfs/0073-0108.pdf .
[3] Dialogue Issue 1, pages 50-83 Spring 2011
[4] For example, the article does not even give the reader the full name of my article, a page reference where exactly my articles on this topic can be found (just somewhere “in Tradition Fall 2009”). No pages or hyperlink so that the reader can actually find the article they are replying to.
[5] Nor am I the only one to sense this. Rabbi Harry Maryles notes “In the final article two rabbis – Yosef Wiener and Yosef Ifrah – deal with Rabbi Broyde’s article with an undertone of derision.” http://haemtza.blogspot.com and Rabbi Gil Student notes “Two kollel guys write a lengthy article to rehash old arguments against R. Michael Broyde’s article on women’s hair coverings, using what I consider overly strong language.” https://www.torahmusings.com/2011/05/new-periodical-dialogue-11/
[6] The one in Hebrew in Techumin can be found here http://www.michtavim.com/BroydeTehumin2007.pdf, the initial article in Tradition can be found referenced in note 1: and a reply to Rabbi Eli Baruch Shulman which can be found referenced in note 2 (along with R. Shulman’s excellent reply to my original article). The shiur in question can be found posted at http://www.yutorah.org/lectures/lecture.cfm/740351/Rabbi_Michael_Broyde/Hair_Covering_and_Halacha.
[7] See https://www.torahmusings.com/2010/09/hair-wars-ii. Rabbi Dr. Aharon Rakefet verified to me through a relative of Rav Shach the truth of the basic claim that Mrs. Shach did not cover her hair until well past 1940.
[8] http://text.rcarabbis.org/the-ben-ish-hai-and-women%e2%80%99s-hair-covering-an-interesting-case-of-censorship-by-jacob-sasson/
[9] See as an initial matter lecture six which can be found at: http://www.yutorahtorah.org/lectures/lecture.cfm/754863/Rabbi_Mordechai_I._Willig/Women_in_HalachaHalacha_#6_-_Hair_Covering in which Rabbi Willig closely reviews my disputer and argues very cogently that my explanation is far from persuasive and then he continue to lecture number seven at: http://www.yutorahTorah.org/lectures/lecture.cfm/754864/Rabbi_Mordechai_I._Willig/Women_in_HalachaHalacha_#7:_Hair_Covering_(Cont’d)_&_Kol_Isha in which he presents this approach.
[10] Wiener and Ifrah, page 75.
[11] He writes something similar in a responsum as well (Mayyim Hayyim 2:110):

Know, my child, that the prohibition for women to uncover their hair is extremely well founded! For the custom practiced by all women of ancient times was to cover their hair, and one who did not do so was considered to be promiscuous…Thus, nowadays when women worldwide have abandoned the ancient custom and reverted to the simple practice of not covering their hair, it in no way indicates a deficiency in their modesty or promiscuity, God forbid…

[12] They argue either that the Tur does not record deoraittas, since one needs to follow derabbanans anyway or that the Tur believes that dat Yehudit is a fixed decree with no subjective element.
[13] They argue either that the Tur does not record deoraittas, since one needs to follow derabbanans anyway or that the Tur believes that dat Yehudit is a fixed decree with no subjective element.
[14] Wiener and Ifrah, page 68.
[15] This is Rabbis Wiener and Ifrah’s translation.
[16] Schematically: dat Moshe = causing the husband to sin, dat Yehudit = humiliating him
[17] E.g. eyes, nose, feet, etc.
[18] And a man’s.
[19] In our texts the first position of the Gemara is suggested without a name; many Rishonim have this as Shmuel’s position and I have adopted that convention.
[20] It is, of course, possible and legitimate for a Mishnah and a beraitta to contradict, reflecting different Tannaitic views. Nevertheless, the Talmud strives to create synthesis where possible.
[21] Wiener and Ifrah, page 65.
[22] Additionally, there is a certain amount of circularity in their argument, since if every quote of the Mishnah by definition includes the interpretation of the Gemara as normative, there is nothing left to discuss.
[23] Ritvah is attempting to work out the sugyah to fit with both Shmuel and R. Yohanan:

…there are three rules with regard to this law: In a courtyard, even without a work-basket, there is no prohibition against uncovering hair; in the marketplace, going even with a work-basket is a violation of dat Yehudit; and in an alley, it is permissible to go with a work-basket but not without one.

I understand the middle phrase as meaning that going out with her hair exposed, even if only partially (and certainly fully), is a violation of dat Yehudit. R. Shulman, in his response, disputed this reading, as do Rabbis Ifrah and Wiener. I really have nothing more to add and leave it up to the reader to decide.
[24] Wiener and Ifrah, page 61.
[25] S.v. hakol Leshem Shamayim.
[26] Other than their argument against the substance of my point, Rabbis Ifrah and Wiener spend a page discussing my imprecise translation of a passage from Berachot. I wrote that R. Yohanan was looking at the women where the text said only that he was sitting by the entrance to the mikvah. Rabbis Henkin and Shulman already caught this mistranslation, and I have previously conceded the point. I concede it again. Nevertheless, it is worth noting that even if one assumes that R. Yohanan saw no actual nudity, there must have been something he was seeing or experiencing that made his students question his behavior and made him answer that “to me they are all geese”; hence the substance of my point is not really affected by this correction.
[27] Wiener and Ifrah, note 24.
[28] See my original article, note 16.
[29] Wiener and Ifrah, page 57.
[30] Wiener and Ifrah, page 58.
[31] i.e. the German Tosafists and their followers
[32] In fact, this interpretation so upset R. Ovadiah Hedaya that he wrote (Responsa Yaskil Avdi 4:9): “It is unfortunate that such was written.”
[33] Winer and Ifrah, pages 67-68.
[34] It is worth noting that Rabbi Willig also expressed the opinion that this second view of Rashi would imply that the requirement for a woman to cover her hair is based only on social custom. See: http://www.yuTorah.org/lectures/lecture.cfm/754864/Rabbi_Mordechai_I._Willig/Women_in_Halacha_#7:_Hair_Covering_(Cont’d)_&_Kol_Isha.
[35] Wiener and Ifrah, page 64.
[36] See above in the section entitled “Additional Sources Supporting My View (Published Since the Original Article)”.
[37] Wiener and Ifrah, page 54 n.11.
[38] “He will uncover her hair”
[39] I confess that I have thought about this Terumat ha-Deshen many times over the past years and never thought of this wonderful explanation. Rabbi Willig provided this explanation in the course of his limmud zechut on this topic. See http://www.yutorahTorah.org/lectures/lecture.cfm/754864/Rabbi_Mordechai_I._Willig/Women_in_HalachaHalacha_#7:_Hair_Covering_(Cont’d)_&_Kol_Isha in which he presents this approach.