[Avodah] [Areivim] Rabbi Broyde responds

[Chana Luntz]

RMF forwarded us a comment written by RMB as follows:

> Everything I have published on the topic of the obligation of 
> married women to cover hair has been in the context of 
> explaining the practice in Lithuania for decades of married 
> women not covering their hair.  It is a form of a limud 
> zechut, which I am always happy to provide, and it explains 
> why wives of eminent torah scholars -- leaders of Torah 
> Judaism both in Europe and America -- were comfortable with 
> their wives not covering their hair.

And then quotes RMB's posting in: 

> http://www.aishdas.org/avodah/vol06/v06n092.shtml

This posting does not (not unreasonably given that it is a complex argument)
set out the full basis for the limud zechut, but elsewhere RMB explains that
first one needs to understand the obligation to cover hair as being, despite
what appears to  be the simple pshat of the gemora in Kesubos, a rabbinical
obligation not a Torah obligation, daas Yehudis, not daas Moshe.  Because if
it is daas Yehudis then one can say it is based on time and place, ie what
other people do, and if nobody is acting in this way, then it would not be
considered improper, whereas if the obligation is a Torah obligation then it
applies regardless of time and place (ie, as RMB has indicated, the
overwhelming majority view).

RMB's analysis involves looking at the Tur and others and attempting to
detect an interpretation that indeed the obligation is rabbinic rather than
d'orisa.  I have wondered for a while though whether there is not a more
straightforward way of getting to the limud zechus than RMB has taken, by
going  back to the words of the gemora in Kesubos. The mishna in Kesubos on
daf 72a gives a list of what is daas yehudis, and the first of these is
"yatzei v'rosha peruha".  And the gemora there 72a-b asks how the Mishna can
say this (ie that it is a rabbinical prohibition, daas yehudis)- "rosha
peruha d'orisa hi?"  It then gives two explanations.  The first is that
while going out without anything at all is a violation of the d'orisa, what
the mishna is referring to is going out with only a "kalsa" on her head (ie
some form of lesser headcovering).  The second explanation is that while
going out to the shuk with rosha peruha is a d'orisa prohibition, and while
rosha perhuha within a woman's chatzer is permitted (otherwise, according to
the gemora, you would not have a bas avraham remaining with her husband)
what the Mishna is talking about vis a vis daas Yehudis is going  "m'chatzer
l'chatzer v'derech mabui".

And I confess this language set me wondering, - if one is looking for a
limud zechus - which RMB characterises as "A limud zichus is a plausible
path not taken by the poskim" - and to which I would add - in the context
where otherwise observant people appear to be consistently behaving against
those poskim (RMB says this too I am really just summarising, and he cites
the limud zechus of the Magen Avraham for women not to daven twice a day) -
I wondered would it not be more straightforward to look closely at this
wording in Kiddushin?  The second explanation of the gemora seems to
differentiate between the level of prohibition dependent upon the nature of
the place, with there being a d'orisa prohibition in the "shuk", a
d'rabbanan prohibition in a "mabui" and it being mutar in a "chatzer".  Why
could this not be understood as basically saying that it is a d'orisa
obligation in a reshus harabbaim d'orisa, a d'rabbanan obligation where the
reshus is reshus harabbaim d'rabbanan, and mutar where we are talking about
a reshus hayachid?  In the gemora the general assumption is that when people
went out to places such as the shuk, they were dealing with reshus harabbim
d'orisa.  On the other hand, in Ashkenaz, we know that the general view
taken was that it was hard to find a reshus harabbim d'orisa (hence the
frequency of town eruvin).  So if you wanted a limud zechus, why could you
not say that everybody agrees (and agreed) that there is a d'orisa
obligation to cover the hair in a reshus harabbim d'orisa - meaning one does
not need to go against the Shulchan Aruch or anybody else (and obliviating
the need for much of the fancy analysis produced by RMB).  Rather just
understand all these sources to be talking about the d'orisa situation (just
as most sources discussing hilchos shabbas generally set out the basic
situation vis a vis carrying on shabbas as the d'orisa reshus harabbim
situation).  But, in Lithuania, given that finding a reshus harabbim d'orisa
was (according to the majority poskim) close to impossible, the prohibition
could thus be held only to be rabbinic - in which case all of the
limitations on daas Yehudis that RMB brings would apply (and query whether
the existence of eruvin could be argued to further impact on this).

Anyhow, I have been mulling over this one for a while and wondered whether
anybody had any thoughts. I too share RMB's concern of writing off "the
practice in Lithuania for decades of married women not covering their hair.
... it explains why wives of eminent torah scholars -- leaders of Torah
Judaism both in Europe and America -- were comfortable with their wives not
covering their hair" - but wondered if there was any particular reason not
to take what seems to me on the face of the gemora to  be a more direct
path.

> Michael Broyde

Regards

Chana