[Avodah] Habituation

[Michael Makovi]

> And here's where, AIUI, you go wrong: the heter is not
> habituation but distraction.
>
> R' Zev Sero

I don't see a meaningful difference in halakhah. I think that all
halakhah cares about is whether you are getting hirhur or not. Whether
you're avoiding hirhur because of habituation or distraction, I don't
think halakhah cares. If you're not getting hirhur, you're not getting
hirhur. Can a blind man look at pornographic images? I assume so - he
won't get hirhur! So what if he isn't distracted? He's blind for
crying out loud!!!

Rav Hai Gaon, Tosafot, the Ramah, the Maharshal, the Levush, the Arukh
ha-Shulhan, they all pasqen that habituation is accepted in halakhah,
based on the aggadot about rabbis doing things like carrying women on
their shoulders, watching the mikvah, etc.

The Beit Yosef (Orah Haim 75) derives from the Rambam's discussion of
an exposed tefah during Shema, that the only tefah that is prohibited
to be exposed, is one that is ordinarily covered and concealed. The
Tur there also seems to permit the exposure of those body parts that
are customarily exposed all the time.

The Ra'avyah says that we aren't concerned with an unmarried woman's
uncovered hair, because we're used to it, and likewise with her
speaking voice. (I don't understand the Arukh ha-Shulhan's statement
that there is a d'oraita for a married woman to cover her hair,
whether or not there's hirhur. Given that the Gemara and Rambam speak
of Jewish WOMEN covering their hair, married or not, where did the
Arukh ha-Shulhan derive a principle of married women specifically
being required? I'm honestly confused. According to what I've seen,
the only heter that UN-married women have,is a hergel one. Were it not
for habituation, unmarried women would have exactly the same
requirement to cover their hair as married women. Shouldn't hergel
apply to married women just the same as unmarried women, given that
the Gemara and Rambam don't distinguish between married and unmarried
women?)

The Ra'avad (quoted by the Rashba), like the Ra'avya, says qol isha
doesn't include speech, because we're used to women speaking.

It seems to me that hergel is a principle running through all the laws
of tzniut. The Tur in EH 21 relates all the laws of tzniut to pen yavo
l'harher bah. It seems clear to me at least that there are NO
permanent laws of tzniut. EVERY law of tzniut is designed to prevent
hirhur, and where there is no hirhur, there is no issur, either. It
seems like all the laws of tzniut are an extension of etzba ketana;
the issur is only where there's hirhur.

What did the Gemara do, then? It told us what gave hirhur in ITS time,
but not necessarily in our time.

And sociology can affect hirhur a lot. In Mauritania today, for
example, obese women are more sexually attractive than healthy women,
and in parts of Africa, breasts are nothing to write home about.  It
seems to me that everything Hazal said about tzniut applied only to
their time. In every place and time, one must reevaluate what causes
hirhur and what doesn't. Nowadays, for example, breasts clearly cause
hirhur, but hair doesn't. Even within America, what causes hirhur for
black men and white women might differ - there's a line in the
television show "Scrubs", in which a white man asks a black man for
advice on dating black women, and the black man says, "The only
difference between black women and white women is that when a black
woman asks you if her dress makes her butt look big, you say, 'Hell
yeah.'"

Therefore, if halakhah discussed davka distraction with regard to
doctors, I suspect that's only because in that specific case,
distraction is what the doctors had, case closed, no further
discussion. Shu"tim only answer the question that was asked, and since
no one asked about the laws of tzniut regarding Mauritanian male
converts to Judaism, no one answered that question (viz. that he has
hergel to thin women but that fat women are an issue of hirhur for
him, no matter how much clothing they wear.)

I think that if we try to limit the laws of tzniut to only what the
Gemara says, it results in absurdities. Sexuality is so obviously
dependent on time and place, that it makes a mockery of the Torah to
say that the sexual preferences of Biblical (or Talmudic) men are set
in stone for the halakhah, for all time, even if sexuality changes.
Given that the rishonim discussed hergel and hirhur, why not run with
the concept, and take it as far as we can? I agree that we aren't
Qaraites, and that we have to do what the Talmud says, but here, the
rishonim have allowed us to read the Talmud as offering time-bound
sociology-driven "advice". What's good enough for the rishonim is good
enough for me. I don't see myself as rejecting the Talmud's list of
ervah; I rather see myself as accepting the rishonims' reframing of
the Gemara's list, recasting it in terms of time-bound "advice".

(By the way: Rabbi Marc Angel's new book, Maimonides, Spinoza and Us:
Toward an Intellectually Vibrant Judaism, explicitly declares all the
laws of tzniut to be "advice". All the same, Rabbi Angel has told me
privately that if there IS hirhur, then it IS assur. He told me that
he is NOT giving a "heter", only a framework for understanding the
laws of tzniut in a new way. Also, hirhur for women is prohibited no
less than for men; women are prohibited to listen to men sing,
according to him, no less than men are prohibited to listen to women
sing. He IS upholding the laws of tzniut, albeit in his own way. In
his book Losing the Rat Race, Winning at Life, he has harsh things to
say about women who dress scantily.)

In other words: I'd say there's a d'oraita law to avoid hirhur, but
that the precise definition of "hirhur" depends on time and place. The
Gemara told us only about ITS time and place, but not necessarily
ours.

Michael Makovi