The Obligation to Cover a Woman’s Hair – A Critical Study of Rabbi Yosef Messas’s Responsum, and a Note on the Place of Agenda-Driven Interpretation in Halakhic Exegesis

With God’s help

2010

Rinat Ankri and Michael Abraham

Contents:

A. The main obligation of the law is derived from the sotah (suspected adulteress) passage.

B. A response to changed circumstances: covering by force of "Jewish custom."

C. A study of Rabbi Yosef Messas’s responsum, of blessed memory.

D. Several concluding remarks.

Appendix A: Rabbi Baruch Gigi’s comments

Appendix B: Rabbi Messas’s responsum

Rabbi Messas’s responsum regarding head covering for women stirred, and continues to stir, no small amount of controversy. It is an innovative and revolutionary responsum, whose conclusion is that in our day there is no genuine halakhic obligation for married women to cover the hair of their heads. Naturally, in recent years the responsum has been cited in various contexts by those for whom head covering arouses antagonism for different reasons. Even on various internet sites one can find expressions of surprise that there has been no systematic traditional-rabbinic engagement with Rabbi Messas’s words, and it seems, at least at first glance, that his arguments remain standing without response. When one does find reference to his words, it often appears to amount to nothing more than unreasoned halakhic conservatism. Some halakhic decisors, such as Rabbi Malka (the rabbi of Petah Tikva), even agreed with his position.[1]

Our purpose in this article is to examine Rabbi Messas’s responsum systematically in light of the sources that he himself cites. The foundational sources on the matter of covering a woman’s hair will be discussed here only insofar as this is necessary for understanding the responsum. Our premise is that the sources must be read with intellectual honesty, whatever conclusions may emerge. Interpretation must not be subordinated to an agenda—neither a conservative one nor an innovative one. The student is supposed to examine the sources and interpret them according to his or her best judgment, and only afterward make decisions in light of the findings. We are far too small to sit in judgment on Rabbi Messas himself, who was an outstanding Torah scholar and was recognized as such by many of the halakhic decisors of his generation. Therefore nothing we say should be seen as directed at his person, but only at his words in this specific responsum.

This article will not deal with the details of the laws regarding women’s head covering, but only with the introduction to the issue and the basic obligation itself; it will then focus on the arguments raised by Rabbi Messas with respect to this topic. The third chapter, which contains a critique of his responsum, is the main chapter of our article. Rabbi Messas’s responsum appears in full as an appendix at the end of the article.

A. The Main Obligation of the Law Is Derived from the Sotah Passage

It has been accepted from time immemorial that married Jewish women cover the hair of their heads. The source of the law is the verse in the sotah passage (Numbers 5): and he shall uncover the woman’s head. The Talmud in tractate Ketubot 72a derives from here:

And the school of Rabbi Yishmael taught: this is a warning to the daughters of Israel that they should not go out with uncovered heads. By Torah law—a kalta is perfectly sufficient; by Jewish custom—even a kalta is also forbidden. Rabbi Assi said in the name of Rabbi Yohanan: with a kalta there is no issue of an uncovered head. Rabbi Zeira raised a difficulty: where? If in the marketplace—that is Jewish custom! Rather, in the courtyard? If so, you have left no daughter of our father Abraham who can remain with her husband! Abaye said, and some say Rav Kahana: from courtyard to courtyard by way of an alley.

Later in this talmudic passage there appears a discussion dealing with the core law, which is of Torah origin (that is, "the law of Moses"), and with customs practiced by Jewish women that generate obligation by force of "Jewish custom."

From the Talmud and Rashi’s commentary there, one may learn that the core Torah law is that a woman may not go out into the public domain with her head uncovered. The Talmud in Ketubot says there: By Torah law—a kalta is perfectly sufficient; by Jewish custom—even a kalta is also forbidden. From here it emerges that the basic Torah obligation is that a woman’s hair not be left loose and uncovered, and that a head covering meeting the definition of a kalta is sufficient. What is a kalta? Rashi explains there that it is a kind of basket that a woman places on her head. The Shitah Mekubetzet explains that such a covering does not cover all of the woman’s hair, and yet it still suffices as a Torah-level head covering. Maimonides explains kalta as a kerchief (Laws of Marriage 24:12): …if she violates Jewish custom by going out to the marketplace or to a blind alley with her head uncovered and without a shawl over her like all other women, even though her hair is covered with a kerchief. The Bah (Even Ha-Ezer 115) explains this to mean that by Torah law it is enough for her to cover her hair with a kerchief, whereas by force of Jewish custom she must cover her head with a shawl, a garment that "covers her whole body like a tallit" (according to Maimonides, Laws of Marriage 13:11). According to the Mechaber (Even Ha-Ezer 115:9) and the Meiri (Beit Ha-Behirah, Ketubot 72a), Maimonides means by "kerchief" a head covering that does not cover all the hair, whereas "shawl" means a full head covering (similar to Rashi’s interpretation). By contrast, the author of the responsa Shevut Yaakov (part I, no. 103) explained kalta to mean that her hair is braided, that is, that by Torah law it is sufficient for a woman to go out to the marketplace with her hair gathered, and there is no need to cover the hair. Be that as it may, according to the overwhelming majority of interpreters (apart from Rabbi Yosef Messas, as we shall see below), there is a binding Torah source requiring that a woman’s hair not be left loose, and according to most opinions that it even be covered. We should note that most interpreters view this as a genuinely Torah-level source, although there have been some objections to that.

From here, then, one may summarize on the basis of the overwhelming majority of halakhic decisors that by Torah law—that is, under the category of "the law of Moses"—a married woman is obligated, when going out to the marketplace, to gather the hair of her head. According to most decisors, a partial head covering (a kalta) suffices to satisfy the Torah obligation.

B. A Response to Changed Circumstances: Covering by Force of "Jewish Custom"

In the previous section we saw that, according to most halakhic decisors, the Torah-level obligation of head covering is limited and partial. And yet Jewish women customarily adopted a full head covering. Accordingly, an additional obligation arose here to cover the hair by force of "Jewish custom." "Jewish custom" is an expression denoting a practice adopted by Jewish women that goes beyond the basic Torah law and acquires binding halakhic force.

The source for this is found in the Mishnah in Ketubot 72a:

And these are the women who leave without receiving their ketubah: one who violates the law of Moses or Jewish custom… And what is Jewish custom? She goes out with her head uncovered.

The modesty practice adopted by Jewish women also seems to have halakhic significance in the laws of reciting the Shema, as appears in tractate Berakhot 24a: a handbreadth in a woman is nakedness—that is, it is forbidden to expose a handbreadth of places defined as nakedness. The Talmud clarifies which places are involved and suggests, among other things, that a woman’s hair is also included in the category of nakedness. At first glance, the Talmud seems to imply that even unmarried women should, as a matter of basic law, gather or cover their hair. However, the Shulhan Arukh, Orah Hayyim 75:2 (regarding the laws of reciting the Shema), ruled:

A woman’s hair that she ordinarily covers—it is forbidden to recite opposite it… But virgins, who ordinarily go with uncovered heads, are permitted.

From here it appears that the definition of a woman’s hair as nakedness, for the purposes of the laws of Shema, is determined by women’s practice of covering it. Therefore, since unmarried women customarily did not cover their hair, their hair was not included in the category of nakedness. To be sure, many have already written that there is no necessary connection between the laws of Shema and the general laws of modesty, and we shall see this below.

But what about the dependence on custom with respect to the very obligation of head covering for married women? The custom of Jewish women received force in the definition of "Jewish custom." But as we have seen, this is only an additional layer beyond the Torah law. The distinction between the law of Moses and Jewish custom makes it clear that the basic Torah law does not depend on custom, and even if a situation were to arise in which many women did not cover their heads, the obligation of head covering for married women—or the prohibition against exposing the hair—would remain in force. Only obligations that stem from Jewish custom depend on local practices. This itself corroborates the claim that there is no connection between the laws of Shema, which depend on custom, and the very law of head covering by Torah law, which does not depend on custom.

If one nonetheless insists on some connection between the fundamental obligation to cover the head and the laws of Shema, one might perhaps see in the ruling that it is permitted to recite the Shema opposite the uncovered hair of an unmarried woman proof that, by Torah law, an unmarried woman has no obligation to cover or gather the hair of her head, and therefore her hair is not considered nakedness.[2] But for married women, according to the view of most decisors, the primary prohibition against letting the hair of their head be loose is of Torah origin and precedes Jewish custom; it therefore seems that one cannot uproot this prohibition from its foundation even if the practice of Jewish women not to go with covered hair were to spread.

At the same time, since we saw that the basic Torah law requires only gathering the hair or partially covering it, and not necessarily full covering, it may be that if a custom were to spread of wearing a head covering that does not cover all the hair, then their hair would no longer be considered nakedness for purposes of reciting the Shema opposite it.

In sum: since the opinion of the overwhelming majority of decisors is that there is a Torah-level basis for the commandment of head covering for a married woman, one cannot argue for the annulment of the law at its root. The obligation upon a married woman not to go with loose, uncovered hair remains in force. At the same time, one may perhaps argue that if the custom of Jewish women becomes widespread to go with hair that is not completely covered (as in the various interpretations of kalta that we saw above in section A), then the force of "Jewish custom" would diminish, and the obligation would be only to gather the hair or to provide minimal covering.

Support for this approach may be learned from the law of a woman’s leaving without receiving her ketubah payment in our time. Originally, by force of Jewish custom, a woman who went with uncovered hair could lose her ketubah, as stated in Ketubot 72a (cited above). However, because of the large number of women who go bareheaded, Rabbi Moshe Feinstein, of blessed memory (Iggerot Moshe, Even Ha-Ezer I, no. 114), Rabbi Ovadiah Hedaya, of blessed memory, author of Yaskil Avdi (also cited in Yabia Omer III, Even Ha-Ezer no. 21, and in Yaskil Avdi V, Orah Hayyim no. 55, sec. 3), and a ruling of the Chief Rabbinate (p. 126) held that today one should not deny the ketubah payment of a woman who went with exposed hair. Here too, the reason the woman leaves with her ketubah is that the rationale for that law has lapsed: the Rosh, in responsum 9, explains that a woman leaves without a ketubah only in cases where she causes her husband to transgress prohibitions, such as a woman who feeds him non-kosher food or commits sins whose punishment is that her children die. A woman who violates Jewish custom does not receive the ketubah because of a concern for promiscuity. Beit Shmuel, Even Ha-Ezer 115, subsec. 1, explained that a woman who goes bareheaded is regarded as promiscuous, and therefore there is concern that she may commit adultery against her husband; that is, a woman who goes without head covering is suspected of licentiousness, and a kind of presumption exists that she will be unfaithful to her husband, in which case she loses her ketubah. But in our time, when many women go without head covering—including upright and religious women about whom there is no suspicion at all that they will betray their husbands, and who simply think that going without head covering involves no prohibition and is not immodest—this is no longer the case. It follows that today the presumption that anyone who goes bareheaded is promiscuous and will be unfaithful to her husband has lapsed. Therefore these decisors ruled that in our time a woman does not lose her ketubah on the basis of violating Jewish custom by going without head covering. At the same time, according to all these decisors, this does not nullify the very prohibition transgressed by that married woman who goes without head covering, whether by Torah law and perhaps also by Jewish custom.

The conclusion up to this point is that, as a matter of basic law, there exists a Torah-level obligation upon married women to cover their hair. Even if the number of women who go bareheaded increases, this prohibition still remains in force. As to reciting the Shema opposite their exposed hair, some have been lenient, but even with respect to that several decisors (Hazon Ish, Orah Hayyim 16:8; Iggerot Moshe, Orah Hayyim I, 42) wrote that the prohibition remains. And regarding loss of the ketubah, we saw that there are indeed decisors who were lenient, but as we have seen, even that does not touch the core obligation of head covering itself.

Against this background one can see how exceptional Rabbi Messas’s ruling is in Otzar Ha-Mikhtavim, part III, p. 211, where he exempts married women from head covering because of changed circumstances. More than that: at certain stages of his discussion it appears from his words that he finds no Torah source at all for the very obligation to cover a woman’s hair. As we mentioned, this ruling has become increasingly widespread in various circles in our time, and no systematic critique of his arguments, reasoning, and methodology has yet been presented. In the next section we shall study his ruling and explain why it is very difficult to accept his words and reasoning.[3]

C. A Study of Rabbi Yosef Messas’s Responsum, of Blessed Memory

 

This chapter, which is our principal one, presents a critique of Rabbi Messas’s aforementioned responsum. It is divided into subsections in order to make things easier for the reader.

 

Background

We begin with the background that led to the ruling. The matter appears in a letter of Rabbi Messas to a rabbi in Casablanca, Morocco, and it is evident from his words that a breach had occurred there and that most married women had adopted the practice of going with uncovered hair. The questioner’s wife also wished to expose the hair of her head, and this was difficult for her husband. Because of this breach, because of the large number of women going bareheaded, and in order to preserve domestic peace between husband and wife, the questioning rabbi turned to Rabbi Messas and asked him to find grounds to permit the exposure of a married woman’s hair.

The Main Basis for the Innovation: Rashi’s Interpretation of the Passage

At the beginning of his ruling, Rabbi Messas cites the basis for the obligation to cover a woman’s hair from Ketubot 72a, as the halakhic decisors had understood it. He cites Rashi’s explanation of Rabbi Yishmael’s statement quoted above, which is the main source for the warning against going bareheaded. Rashi explains Rabbi Yishmael’s warning there as follows:

A warning—because we do this to her in order to disgrace her, measure for measure, just as she made herself attractive to her adulterer; from here it follows that it is forbidden. Or alternatively, from the fact that Scripture says, “and he shall uncover,” it follows that until that moment her head had not been uncovered; from this we learn that it is not the way of the daughters of Israel to go out with uncovered heads, and this is the primary explanation.

The first explanation—because we do this to her in order to disgrace her, measure for measure, just as she made herself attractive to her adulterer…—leads Rabbi Messas to conclude that we are dealing here with a prohibition upon us: we may not uncover a woman’s hair, since doing so is a humiliation to her, and we are not permitted to humiliate her except where there is an element of measure-for-measure, as in the case of the sotah. In other words, there is no obligation here upon the woman at all to cover her head, but only a prohibition upon us to uncover her head if this is done without justified reason. Only Rashi’s second explanation—Or alternatively, from the fact that Scripture says, “and he shall uncover,” it follows that until that moment her head had not been uncovered; from this we learn that it is not the way of the daughters of Israel to go out with uncovered heads, and this is the primary explanation—points to an obligation imposed upon the woman herself to cover her head, and even this is stated only in the language of custom. Rabbi Messas explains that the prohibition came into existence because this was the practice of Jewish women, and he concludes that this is not an absolute law independent of custom.

The rabbi’s conclusion is this: from the first explanation we learn that there is no prohibition at all for a woman to go bareheaded; at most there is an element of disgrace here, and if she wishes, she may disgrace herself, just as a person may injure or embarrass himself. From the second explanation we learn that, despite this, the verse and the words of the Talmud imply that Jewish women customarily did not go bareheaded, and from here the prohibition against going with head uncovered is derived.

Rabbi Messas then adds: And if so, now that all the daughters of Israel have agreed in their minds that there is no modesty at all in head covering, and certainly no disgrace… then we should uproot the prohibition at its root and make it permitted. That is, his conclusion is that Rashi’s interpretation of the passage implies that there is no obligation whatsoever to cover the head in a place where Jewish women do not customarily cover it.

Let us now examine Rabbi Messas’s arguments and his interpretation of Rashi. Do these novel claims indeed stand up to the test of Rashi’s language and the flow of the passage?

Difficulties with His Interpretation of Rashi: The Flow of the Passage

The passage opens with the Mishnah’s distinction between the law of Moses and Jewish custom:

Mishnah: And these are the women who leave without a ketubah: one who violates the law of Moses or Jewish custom. And what is the law of Moses? If she feeds him food that was not tithed, has relations with him while she is menstruating, does not separate hallah, or makes vows and does not fulfill them. And what is Jewish custom? She goes out with her head uncovered, spins in the marketplace, or speaks with every man. Abba Shaul says: also one who curses his parents in his presence. Rabbi Tarfon says: also the loud woman. And what is a loud woman? When she speaks inside her house and her neighbors hear her voice.

The Mishnah rules that one who violates either the law of Moses or Jewish custom leaves without her ketubah. Thus, for example, the law of Moses includes feeding one’s husband untithed produce, while Jewish custom includes going with loose, uncovered hair. With regard to head covering itself, no distinction appears in the Mishnah, and it seems that the whole matter of head covering is merely rabbinic.

But the Talmud addresses this Mishnah and challenges it:

And what is Jewish custom? She goes out with her head uncovered. Is an uncovered head merely Jewish custom? It is a Torah law! As it is written: “And he shall uncover the woman’s head,” and the school of Rabbi Yishmael taught: this is a warning to the daughters of Israel that they should not go out with uncovered heads! By Torah law—a kalta is perfectly sufficient; by Jewish custom—even a kalta is also forbidden…

The Talmud brings Rabbi Yishmael’s statement in order to contradict the Mishnah’s formulation, since his words indicate that going with loose, uncovered hair is a Torah-level matter and not merely Jewish custom. The Talmud therefore distinguishes between a kalta and full covering (we explained this distinction above).

According to Rabbi Messas’s reading, the flow of the passage is unclear for several reasons:

• First, according to his position, which claims that the entire force of the law of head covering derives only from Jewish women’s custom, it is impossible to understand the continuation of the talmudic discussion, which distinguishes between a kalta and full head covering, or between courtyard, alleyway, and public domain (as the continuation of the passage does). What place is there for these distinctions if everything is derived from the custom of Jewish women? In other words, the very distinction between the law of Moses and Jewish custom regarding head covering, as it appears in the Talmud, is unclear on his view. If the law of Moses is also just an expression of Jewish women’s custom, then what exactly is the difference between it and Jewish custom?
• Second, from the way he reads Rabbi Yishmael’s words, it is not clear what the challenge from those words to the Mishnah could be. Perhaps the Mishnah dealt with a place and/or a time in which Jewish women did not customarily cover their heads, whereas Rabbi Yishmael spoke in another place or another time? More generally, if the matter depends on custom, what room is there for challenging one tanna from another tanna? Later in the passage the discussion moves on to amoraim, who lived later and some of whom were also in another place (Babylonia), and this makes the problem even more difficult.

• More broadly, what sense is there in bringing proof from the Torah for varying customs—by Torah law, a kalta is perfectly sufficient—if our custom is different? What can be learned for us from what was practiced in the time of the Torah?
• According to Rashi’s first explanation, it is not clear why the prohibition of embarrassing a woman—an interpersonal prohibition against uncovering a woman’s head without justification (that is, a prohibition against disgracing and shaming her)—serves as a relevant source for the law that she leaves without a ketubah. Clearly the Talmud assumes that the woman’s leaving without a ketubah reflects the fact that there is a prohibition upon her to go with her head uncovered. If not, then by the logic of Rabbi Messas’s argument we would have to make every woman who was struck by someone (or who struck herself) lose her ketubah, since there is indeed a prohibition against striking a Jew.
• The very language of the Talmud is: “And he shall uncover the woman’s head”—from here, a warning to the daughters of Israel that they should not go out with uncovered heads. But according to the first explanation in Rashi as understood by Rabbi Messas, this would actually be a warning to Jewish men not to uncover women’s hair and not to humiliate them. That simply cannot be maintained. The Talmud states explicitly here that the warning is directed to Jewish women not to go out with uncovered hair.

At first glance, the last two considerations suggest that, according to Rabbi Messas, the two explanations in Rashi are not really two different explanations at all. Rather, they form one cumulative interpretation: Jewish women customarily do not go out with loose hair (the second explanation), and from that it follows that there is an interpersonal prohibition against uncovering their hair because that humiliates them, unless it is done as a measure-for-measure response to deviation (the first explanation). But if that is so, then his argument from Rashi’s first explanation collapses. He understood the first explanation to mean that there is no prohibition at all upon the woman to expose the hair of her head; but on our reading, that is not an independent interpretation. It is an interpretation that joins the second, and it is clear that there is indeed a prohibition against exposing the head (because of the custom). Rabbi Messas himself, since he relies on the first explanation in order to show that there is no prohibition, obviously understood it as standing independently, and on that he builds his argument. But as we have seen, the flow of the passage does not allow us to say this.

Interpreting the Passage and Rashi

So how, then, are we to understand Rashi? At first glance Rabbi Messas is right that in his first explanation Rashi speaks only about an interpersonal prohibition, while in the second he speaks about custom.

To understand this, let us look again at Rashi’s first explanation, where he writes: from here it follows that it is forbidden. What exactly does this mean? What is the thing that is forbidden, and from what is it learned? Rabbi Messas apparently understood that the prohibition is learned from the fact that her hair is uncovered only in order to disgrace her, implying that if the purpose were not to disgrace her it would be forbidden to do this to her, and that the prohibition is therefore one of shaming. From there he concludes that we are dealing here with a prohibition of humiliation, not with a prohibition of going without head covering. But, as noted, that interpretation is impossible in this passage, since a prohibition of humiliation cannot be related to leaving without a ketubah, for all the reasons listed above.

It is therefore clear that Rashi means something else. The prohibition is the prohibition against going without head covering, in line with the plain sense of the talmudic language. We learn this from the fact that the sotah is punished in this way: apparently what she did—uncovering her head before her paramour—was improper. In other words, what is forbidden here is what she did, namely revealing the hair of her head before the adulterer, and not the humiliation inflicted on her. What we learn from here is that doing this is prohibited, and that is what Rashi means in his first explanation when he writes from here it follows that it is forbidden. Rashi certainly does not mean to say that there is here only an interpersonal prohibition.

We can now see that Rashi’s words may indeed be read as two different explanations:

• From the fact that she was punished this way, it follows that what she did—revealing her head before her paramour—was a forbidden act.
• From the fact that her head is uncovered, it follows that women’s hair is ordinarily covered. And that is presumably because there is some prohibition against exposing it.

To be sure, the second explanation’s proof from the fact that women in practice covered their hair is not conclusive, for it is possible that this was merely a custom and not a full-fledged law. But according to Rashi’s second explanation, that custom apparently points to the existence of some underlying prohibition; and our discussion here concerns only the Talmud and Rashi’s interpretation of it. By way of parenthesis, we may note that the prohibition of gid ha-nasheh (the sciatic nerve) is also learned from a verse that speaks of the practice of the children of Israel not eating the gid ha-nasheh—therefore the children of Israel do not eat the sciatic nerve to this very day. Thus, head covering is not the only case in which a law is learned from a biblical custom. This of course does not mean that if people in some place were to begin eating the gid ha-nasheh it would thereby become permitted. Therefore, the fact that the law rests on a biblical custom does not necessarily open the possibility of changing it when social norms change. In any event, that certainly does not follow from Rashi’s words.

We should note that in the appendix we bring Rabbi Baruch Gigi’s remarks. After reading our discussion, he suggested a possible way of reconciling Rashi’s second explanation with Rabbi Messas’s reading.

Examining Two Additional Arguments in Rabbi Messas’s Responsum

Rabbi Messas brings proof for his reading of Rashi from Rabbi Akiva’s statement in the passage in Bava Kamma 90a, writing as follows:

Moreover, we find the reasoning of the first explanation written by Rashi, of blessed memory, stated explicitly by the holy Rabbi Akiva, of blessed memory, in tractate Bava Kamma 90a in the Mishnah. And this is its language: There was an incident involving one man who uncovered a woman’s head in the marketplace. She came before Rabbi Akiva, and he obligated him to give her four hundred zuz [because he disgraced her in the marketplace, since in their times an uncovered head was considered disgraceful]. He said to him: Rabbi, give me time; and he gave him time. He watched her standing at the entrance to her courtyard, and he broke a jar in front of her containing a small measure of oil. She uncovered her head and was clapping and placing her hand on her head. He stationed witnesses against her and came before Rabbi Akiva. He said to him: Must I give four hundred zuz to such a woman? He said to him: You have said nothing, for one who injures himself, though not permitted, is exempt; others who injure him are liable. End quote.

And one must know what the word “exempt” means here—exempt from what? Exempt from payment does not fit, for to whom should he pay—himself? Exempt from lashes is obvious, for where do we ever find that one who injures himself is liable to lashes? And I later saw Tosafot on 91b, s.v. “one who injures,” who raised this issue, and resolved it with difficulty, that “exempt” here means only that there is no element of liability, but merely that he does not care for his own body; see there.

In my humble opinion, Rabbi Akiva used this wording of “one who injures…” only by way of borrowing language from the law of bodily injury, where there is some prohibited aspect in injuring oneself. But in our case there is no injury here, only embarrassment, and according to all views a person is permitted to embarrass himself, whereas others who embarrass him are liable, as stated explicitly there on 91a; see there. And so too it appears in the glosses of Rabbi Isaiah of Trani printed in the margin of the Rif in the new Munich edition of the Talmud, who wrote on Rabbi Akiva’s words as follows: “one who injures”—note: “for she embarrassed herself.” End quote. This is exactly as we have said.

He adduces proof for his position from the fact that Rabbi Akiva exempted a person who uncovered a woman’s head when she herself had uncovered it as well. He argues that this cannot mean exemption from lashes, and certainly not from monetary payment. Therefore he claims that Rabbi Akiva means to exempt her from punishment, just as one exempts a person who injures himself. From this, he argues, there is proof that uncovering the head is merely a matter of humiliation (something akin to injury), and not a real prohibition.

But this proof is highly puzzling. He is quite right that the discussion there concerns the law of embarrassment damages. He is also right that a person may embarrass himself (or at least is exempt from paying embarrassment damages for doing so). But what has all this to do with the question of the scope of the obligation to cover the head? There is an obligation to cover the head, by Torah law, under the laws of modesty; quite apart from that, one can discuss the liability for humiliation when someone exposes a woman’s hair in the marketplace. If we were to find a discussion of someone exposing the woman’s body (stripping her in the market), who certainly violates the prohibition of humiliation and is liable to pay, and who is likewise opposed by the fact that the woman herself would be exempt if she did this to herself—would we be able to infer from this that the woman herself is under no prohibition against walking naked in the marketplace? What do monetary laws have to do with prohibitions? Why should the claim that others are forbidden to humiliate her by exposing her hair, while she herself is not forbidden in that monetary sense and owes no payment, prove that there is no independent modesty prohibition upon going bareheaded? The argument is simply incomprehensible.

Presumably Rabbi Messas means to argue that, from the fact that only others are forbidden to uncover the woman’s hair but the woman herself may reveal her own hair, it follows that there is no obligation upon her to cover it. But, with all due respect, this rests on a misunderstanding of the passage, whose subject there is monetary law (that is the whole context). The woman may embarrass herself and may reveal her own hair so far as liability for embarrassment damages is concerned. Is she permitted to do so from the standpoint of modesty law? That is an entirely different question, one that the passage is not discussing at all. In our opinion, this proof is wholly untenable.

Later in his letter, Rabbi Messas cites the story of Kimhit, which appears in tractate Yoma 47a:

The Sages taught: Kimhit had seven sons, and all of them served as High Priest. The Sages said to her: What did you do to merit this? She said to them: In all my days the beams of my house never saw the braids of my hair. They said to her: Many did so, and it did not help them.

From this Rabbi Messas infers: You see that the Sages rejected her words as nothing more than the talk of an old woman, for they knew that there was no prohibition in this at all, only a custom practiced by the daughters of Israel. In Rabbi Shalom Messas’s responsum (Tevuot Shemesh, Even Ha-Ezer no. 138), this argument is rejected, and he writes that although the sages told her that her conduct did not explain the special merit she received, the discussion there concerns covering the hair in her home, and indeed there is no obligation upon a woman to cover her hair in her home when no strange men are present. Hence this is no proof for Rabbi Yosef Messas’s claim, since the main discussion concerns uncovering the head in public.

But even this proof could have been rejected at the outset. Even if this was not the reason for the merit Kimhit received, does that necessarily mean that exposing the head is not prohibited? On the contrary: precisely because it is a prohibition, the fact that she refrained from violating it is not enough to justify the great merit she received. Therefore there is no connection at all between the question whether there is merit here and the question whether exposing the head is prohibited or not. To the best of our judgment, the argument from the story of Kimhit is likewise very puzzling.

These two examples sharpen the point that Rabbi Messas, in his desire to find justification for Jewish women, reads the sources in a highly tendentious way. We shall now see additional examples of this in his words.

The Proof from the Sotah Passage

Later in his discussion, Rabbi Messas cites the baraita in tractate Sotah 8a:

The Sages taught: “And he shall uncover the woman’s head”… I know only her head; from where do we know her body? The verse says: “the woman.” If so, what is the meaning of “and he shall uncover her head”? It teaches that the priest loosens her hair.

And Rashi there explains:

“And he shall uncover” — everywhere this expression means revealing. “He loosens her hair” — he increases the exposure by unbraiding her hair.

On this Rabbi Messas writes:

And even more compelling than all this: the meaning of Rabbi Yishmael’s words is not as we superficially understand them, as standing on one leg only—that is, mere uncovering of the head. Rather, his words stand on two legs, meaning two defects: exposed hair and hair loosened from its braid and ties. But mere exposed hair alone is not included in the warning at all. And this interpretation is absolutely compelled by the Mishnah in Sotah chapter 7: “And the priest takes hold of her garments…” until “he exposes her breast and loosens her hair.” Rashi explains there: “he loosens her hair from its braid, and later this is derived.” End quote. And the derivation is on 8a: “The Sages taught: ‘And he shall uncover the woman’s head’—I know only her head; from where do we know her body [that is, the breast mentioned in the Mishnah]? The verse says ‘the woman’ [meaning her body, that is, her breast, as the masters of the Mishnah transmitted]. If so, what is the meaning of ‘and he shall uncover the woman’s head’? Rather, it teaches that the priest loosens her hair,” meaning he destroys her braided tresses, unties them, and spreads them over her neck and shoulders. And this still applies even today to a woman with long hair, to loosen it from its braid and leave it hanging loose here and there, mixed up and disheveled. And so too the Magen Avraham wrote in Orah Hayyim 75, subsec. 2, that when Maran wrote in Even Ha-Ezer that the daughters of Israel may not go with “uncovered heads,” he meant that they unbraid their hair and go out to the marketplace. End quote; see there.

You have thus seen that the meaning of “and he shall uncover the woman’s head” is that he uncovers it and loosens it. And on this Rabbi Yishmael said: a warning to the daughters of Israel that they should not go out with uncovered heads—that is, with hair exposed and loosened from its braid and disheveled. But if she only exposes it while it remains braided, or combed and arranged, with no disgrace in it at all, we have no issue with it. And all this is so even according to their times.

Rabbi Messas explains that Rabbi Yishmael’s exposition, which warns Jewish women not to go out with uncovered hair, speaks of two components: (1) without covering, and (2) loose and unbraided. He argues that where only one of the two is absent, there is no Torah prohibition. He adduces proof for this from the words of the Magen Avraham, Orah Hayyim 75, subsec. 3 (not subsec. 2).

Several remarks must be made here:

• First, as we saw above, there are indeed positions among the decisors according to which the Torah obligation is only to braid the hair and not to cover it. But as we also saw, this is a minority view and is not stated explicitly among the medieval authorities. In any case, no proof beyond the aforementioned Ketubot passage is needed for that.
• Second, according to Rabbi Messas’s own view, if the priest in fact did both things, that would mean that women’s practice at the time was both to cover and to braid. But according to Rabbi Messas himself, if that was women’s practice in that period, then both elements would be Torah obligations by force of custom, since on his own view custom is what determines the law. His interpretation therefore refutes itself on its own terms.
• One must also distinguish between the priest’s act and the obligation upon women. It may be that the priest indeed did both things, uncovering and unbinding. But does that necessarily prove the scope of the obligation resting on women themselves? On the contrary: if he did both things, then it is proven in exactly the same way that women are under a Torah-level obligation both to braid and to cover. Once again, according to Rabbi Messas the custom is what establishes the obligation.
• Even Rabbi Messas’s proof from the Magen Avraham is highly puzzling. First, let us cite the words of the Shulhan Arukh there:

A woman’s hair that she ordinarily covers—it is forbidden to recite opposite it (gloss: even his own wife). But virgins, who ordinarily go with uncovered heads, are permitted.

And the Magen Avraham there, subsec. 3, writes:

“Virgins, who ordinarily…”—This is difficult, for in Even Ha-Ezer 21:1 it is written that the daughters of Israel may not go in the marketplace with uncovered heads, whether unmarried or married, and so too Maimonides wrote in chapter 21 of the laws of forbidden relations. Moreover, it is stated at the beginning of chapter 2 of Ketubot that if she went out with a bridal veil and her head uncovered, this is a sign that she was a virgin; and it is strained to say that “unmarried” there means a widow, for if so it should have explained. One may answer that the term “uncovered head” written in Even Ha-Ezer means that they undo the braids of their hair and go out to the marketplace, and that is forbidden even for an unmarried woman; and so Rashi explained on the verse “and he shall uncover the woman’s head.” Nevertheless, one must say that an unmarried woman is not forbidden by Torah law; for if the verse also spoke about an unmarried woman, then even mere uncovering of the head should be forbidden for her, since from this verse we derive in Ketubot chapter 7 that the daughters of Israel should not go with uncovered heads. Rather, one must say that the verse does not speak about an unmarried woman at all, and it is only a matter of modest conduct for virgins not to go that way.

The Magen Avraham is resolving a contradiction in the words of the Shulhan Arukh: here it sounds as though unmarried women go with uncovered hair, whereas in Even Ha-Ezer 21 he rules, following Maimonides, that even unmarried women are forbidden to go with their hair loose. He resolves this by saying that with respect to unmarried women the issue is unbraiding the hair, whereas there is no obligation to cover it. Even the unbraiding of unmarried women’s hair is not of Torah origin. It emerges clearly from this that, regarding married women, both covering and braiding are Torah-level requirements. This is explicit in the Magen Avraham, and Rabbi Messas’s reading is exceedingly puzzling. Moreover, in the Shulhan Arukh itself there is of course no doubt that the hair must be covered; the whole discussion, even if it had any place, concerns only the words of the Magen Avraham. But the Magen Avraham himself is trying to explain the Shulhan Arukh; how could he possibly say something that cannot be read into the Shulhan Arukh at all? Thus Rabbi Messas’s discussion here is extremely puzzling.

For additional reinforcement, though it is hardly necessary, let us cite the words of the Mishnah Berurah there, subsec. 12:

“Who ordinarily…”—see the Magen Avraham, who wrote that they should not go with uncovered heads unless their hair is braided and not loosened; but the Mahatzit HaShekel and Magen Gibborim are lenient in this. The Hayyei Adam wrote: with regard to gentile women, who are not warned to cover their hair, it requires further consideration whether in this respect they are like virgins.

 

The Lapsing of a Custom Whose Rationale Has Ceased

How can one argue for the lapse of a prohibition merely because people have adopted a permissive practice? Rabbi Messas answers:

This is not a difficulty. First, because this is not a prohibition at all, only a custom whose rationale has lapsed; for even a prohibition whose rationale has completely lapsed, its prohibition lapses—for example, uncovered liquids… nevertheless, since snakes are not found among us, it is permitted…

He seeks to prove that even a prohibition whose rationale has completely lapsed loses its force, from the prohibition against drinking liquids left uncovered. The prohibition against drinking liquids that had been left uncovered at night was enacted because of the danger of snakes. But this prohibition is only rabbinic, as Rabbi Shalom Messas explains in his responsum, and in the plain sense it is not even a halakhic enactment but merely a concern for danger; therefore it can be uprooted once its cause has disappeared. Here we return to Rabbi Messas’s claim that the entire prohibition against a woman’s uncovered hair is only a custom, but most interpreters do not agree with that.

Furthermore, Maimonides writes in Laws of Rebels 2:2:

If a court enacted a decree, established an ordinance, or instituted a custom, and the matter spread throughout all Israel, and a later court arose and wished to annul the earlier rulings and uproot that ordinance, that decree, or that custom—it cannot do so unless it is greater than the earlier one in wisdom and in number. If it was greater in wisdom but not in number, or in number but not in wisdom, it cannot annul its words. Even if the rationale for which the earlier authorities decreed or enacted has lapsed, the later ones cannot annul it unless they are greater than them.

According to his view, then, even a rabbinic enactment whose rationale has lapsed does not lapse automatically, contrary to Rabbi Messas’s assumption. True, the Raavad there disputes Maimonides, but Rabbi Messas here simply assumes the Raavad’s position as though it were self-evident, without any justification or argument. Hence, even if Rabbi Messas’s premise that head covering is only a rabbinic custom were correct, the mechanism by which its force could lapse is by no means trivial. But the premise itself—that we are dealing only with a rabbinic matter—is problematic, as we have seen. With respect to a Torah prohibition, as is clearly suggested by the fact that Maimonides is speaking only about rabbinic laws, it indeed seems that when its rationale lapses, the prohibition lapses.

Confusing the Parameters of the Obligation with the Obligation Itself

Beyond all this, it seems to us that Rabbi Messas is conflating two different planes of discussion. He assumes that the force of the obligation to cover the head derives from custom. But the question whether the parameters of head covering depend on the custom of Jewish women is different from the question of the basic force of the obligation itself. It may be that the extent and manner of covering depend on custom and can change with time and place; but the very obligation to cover the head is learned from a verse and therefore does not depend on custom. Rabbi Messas assumes that if the parameters depend on custom, then the obligation itself is nothing more than custom. We can see this even more sharply in his treatment of the words of Maharam Alashkar.

Later in his discussion, Rabbi Messas cites as proof the words of Maharam Alashkar in responsum 35, who permits a woman to expose hair "outside her braid, to beautify herself with it." In that ruling Maharam Alashkar explains the basis of his leniency as follows: since women are accustomed to reveal it, the statement that "a woman’s hair is nakedness" refers only to hair that women customarily cover. And indeed, here too Maharam Alashkar seems to argue that the basis for the rule that a woman’s hair is nakedness is the practice of Jewish women to cover it, and he does not mention a Torah source. But one must pay attention to the fact that Maharam is discussing here the exposure of only part of the hair; that is, his words concern the parameters of covering, which depend on custom. They therefore cannot serve as proof for the claim that the very law of covering the hair stems from custom. For we saw above that by Torah law the essence of the matter is not necessarily covering the hair but gathering it, together with a kalta, which for most decisors is only a partial covering. Accordingly, Maharam’s ruling may serve as proof concerning leniencies in head covering because of the prevailing custom among women, but not for uprooting the prohibition in its entirety, which is of Torah origin. Once again, what appears here is a rather tendentious reading of the words of the decisors.

Rabbi Messas’s Conclusion

Rabbi Messas sums up his argument as follows:

The upshot of all this is that this matter of head covering for women stems only from custom alone, which in earlier times they considered modesty… However, now that women have reached a consensus that there is in this neither any disgrace nor any immodesty, heaven forbid, and that there is no modesty in head covering, only hypocrisy… therefore the prohibition has departed.

Here he goes even further, explaining that head covering is hypocrisy rather than modesty, that is, that there is no prohibition at all in exposing the head. According to Rabbi Messas, Jewish women who cover their heads are engaging in hypocrisy.

In his concluding paragraph, Rabbi Messas sums up his practical ruling to the questioner:

…for nowadays, since all women reveal all the hair of their heads, the hair of married women has reverted to being like the hair of virgins, since all alike are accustomed to reveal it. For this is the reason in the case of virgins: because they are accustomed to reveal it, its exposure is not called immodesty… The same is true, and this is the reason nowadays for married women who are accustomed to reveal it.

But as we saw above, the custom of unmarried women not to walk with covered hair has the ability to generate halakhic force and to permit reciting the Shema opposite their uncovered hair, because according to most decisors the Torah-level basis for the prohibition against letting hair hang loose applies only to a married woman (for the sotah passage concerns a married woman), whereas unmarried women are not obligated by Torah law but only by Jewish custom; and since they did not adopt such a practice, no halakhic force attaches to covering their hair. Married women, however, for whom the force of the prohibition against uncovered hair is of Torah origin, cannot have that prohibition uprooted by Jewish women’s custom; custom can only add to it. It is true that some decisors permitted reciting the Shema even opposite the hair of married women, but even they do not argue that married women today are under no obligation to cover their heads. Rather, they distinguish between the obligation to cover the head and the permissibility of reciting the Shema opposite uncovered hair.

D. Several Concluding Remarks

 

1. A remark concerning practical law

We have not come here to decide Jewish law in practice—whether the obligation of head covering is of Torah or rabbinic origin, and how fully the head must be covered. There are arguments among the decisors in both directions (for example, the words of the author of Shevut Yaakov cited above). Moreover, we know that there were places and periods—both in Ashkenazic and in Sephardic communities—in which important women who were careful in Jewish law did not insist on head covering. Beyond this, there is the question whose practice is determinative, since in most places and times Jewish women who were careful in observance did insist, and do insist, on this. Does that not carry weight in determining the law, even if the law were indeed dependent on custom? But our purpose here is not to establish the law, only to examine systematically Rabbi Messas’s reasoning and his handling of the sources, and that we have done.

Our conclusion here is that this responsum suffers from a tendentious reading of the sources. If that tendentiousness had done no more than lead him to choose one option from among the available options, we would have remained silent. That has always been part of the way of Jewish law. But here, to the best of our understanding, the tendentiousness led Rabbi Messas to mistakes and to implausible interpretations of various sources. Therefore, in our opinion, this responsum cannot serve as a sufficient basis for leniency in this law. In practice, the matter is left to each woman, her customary practice, and the various decisors whose rulings she follows.

2. A methodological remark

Rabbi Messas began by expressing a desire to find justification for Jewish women who do not insist on covering the hair of their heads. That desire led him to the conclusion that, in his day, the obligation of head covering belonged to the category of hypocrisy rather than modesty. Thus, in the final analysis, his position seems to have turned completely upside down relative to the starting point of his responsum, and it appears that he no longer sees any place at all for the view that a woman should cover her head. As we have seen, his arguments are based on a highly tendentious reading of the sources, one that does not meet the standards of reasonable interpretation. Some of his suggestions and interpretations are exceedingly puzzling and do not fit what emerges from the very sources he interprets. Another part of his discussion takes sources out of context and interprets them wrongly. Almost none of his proofs are proofs at all. To the best of our understanding, in most cases we are not dealing with a possible but disputed reading, but with an unreasonable—indeed nearly impossible—reading of the sources.

In our view, every halakhic opinion must be examined on its own merits and with an unclouded eye. When we come to clarify a halakhic passage, we must discuss it on the basis of its sources and see what we learn from them. We should not fear innovative conclusions, especially where this serves the purpose of justifying a Jewish practice, something with which decisors concern themselves quite often. But we are obligated to study the sources straightforwardly and without prejudice, neither toward stringency nor toward leniency. Only afterward can we introduce considerations generated by the times and take them into account in selecting one option from among those that emerge from the study of the passage.

In our humble opinion, such a study does not yield the conclusions drawn by Rabbi Messas, with all due respect. What we have here is a subordination of interpretation to an a priori agenda, in a rather blunt form. Although this does happen from time to time among many decisors—some of whom append strained subsidiary arguments, while others adopt interpretations that were not accepted in practice—here the move seems too blunt. One cannot adopt incorrect interpretations, even if the goal is a good one. An agenda, however worthy, cannot be treated as a substitute for reasonable interpretive judgment.

Certainly we see no place for the enthusiasm that seized Rabbi Messas at the end of his words (hypocrisy instead of modesty), nor for the enthusiasm that seizes many people—women and men—who read his ruling, rely upon it, and even regard it as a model of responsiveness to the spirit of the age and the desirable halakhic flexibility appropriate to every decisor. For some reason, in the places where we have seen this ruling quoted, we have not found any substantive critique of his words. We assume this stems from two opposite reasons: those who support his bottom line do not criticize him because they are captive to the same agenda as the rabbi himself (they are pleased with the permission he offers), while conservatives who oppose it apparently fear harming his honor.

We too, insignificant as we are, support flexibility where possible, and certainly adaptation to the spirit of the times. But that must be done without giving up interpretive integrity, and without concealing the problems involved in the proposed solution. We too fear harming the honor of an important rabbi and Torah scholar in Israel, but truth is dearer than all, and therefore the real picture and the full analysis of the sources must be laid on the table in order to enable every person to form an unbiased position from among the possible alternatives.

It is important for us to note that Rabbi Messas’s honor remains fully in place. We have written these words on the basis of straightforward study, according to the best of our judgment and understanding of the sources; let the reader see and judge. We therefore conclude with words already cited by several early writers in the name of Aristotle, and brought by the author of Havot Yair at the beginning of responsum 9 (see also there, responsum 210):

Responsum. The chief of the Greek philosophers wrote: Socrates is dear, Plato is dear, but truth is dearer. Brought in the book Nishmat Hayyim, maamar 2, chapter 10, and in the book Me’or Einayim, section Imrei Binah, chapter 48, and in the book Ba Gad, chapter 4, and in the introduction to the book Hozek Ha-Emunah and in the introduction to the book Ha-Emunot, and in several other places; and similarly the Rivash wrote in responsum 270. (The chief of the Greek philosophers wrote: Socrates is dear, Plato is dear, but truth is dearer.)

3. One further final remark on the tone of the discussion

We found it appropriate to conclude with the words of the author of the responsa Seridei Esh, which reflect another layer of this discussion (part I, end of no. 78):

I have not come here to clarify whether this law of covering the hair of a married woman’s head is an explicit Torah law or a Torah custom. In practice, I hold that even from the standpoint of Jewish ethics it is proper for a married woman to cover her head—for In this way she shows that she is not eager to find favor in the eyes of strange men and opposes other men trailing after her. “The honor of the king’s daughter is inward” — in her home and within her family circle. And it is the way of upright Jewish women that they recoil from strange men casting covetous eyes upon them.

The head covering of a married woman is connected with Judaism’s demands for modesty, simplicity, and moral purity, which are directed to all Israel, men and women alike. Rabbi Samson Raphael Hirsch, of blessed memory, mentioned the law of head covering for women in his book “Horeb” [translated in “The Book of Rabbi Samson Raphael Hirsch: His Teaching and Method,” pp. 249–252], in the same chapter in which he discusses the sanctity of thought, concerning which every man and woman of the Jewish people was commanded. Let this sign of modesty serve as a source for purity of thought; let it not, God forbid, cause separation and the distancing of close ones, but only the drawing near of hearts.

It seems that in light of these words, even a conclusion that advocates permission, or a reduction of the prohibition against exposing the head, ought to have been stated in a different tone—less enthusiastic and more measured.

Appendix A: Rabbi Baruch Gigi’s Comments

We sent the third chapter for Rabbi Baruch Gigi’s review, head of Yeshivat Har Etzion, and he sent us the following remarks (this was an email message, and therefore the wording is abbreviated). They concern the difficulty we raised regarding Rabbi Messas’s understanding of Rashi’s second explanation. One could of course comment on Rabbi Gigi’s remarks themselves (both on their substance and on whether they fit Rabbi Messas’s intent), but here we simply place them before the reader, who may read and judge. We thank Rabbi Gigi for his response.

I reviewed the discussion, and indeed I agree that Rashi’s first reason speaks of a clear prohibition, not as Rabbi Messas, of blessed memory, wrote. On this point his words are very difficult.

As for his discussion of Rashi’s second explanation: according to that reading, head covering emerges from the custom of Jewish women who cover their heads, and so long as that remains the custom it has the force of Torah law.

In my opinion, the sages themselves [and Rashi] simply never imagined a change in the situation, because in their time this was the accepted practice. Only in our time do we have frequent changes in social and living patterns, and with that comes the awareness that things can change. As to the question, if so, what is the relation between the law of Moses and Jewish custom, if everything ultimately rests on custom?—it seems to me that one may answer in one of two ways:

1. The custom hinted at in the verse concerns only the fact of covering itself, while its precise parameters were determined by the sages. Accordingly, they said that the basic level of custom that can count as the law of Moses is a kalta, whereas anything beyond that depends on Jewish custom. This enabled the sages to distinguish between public domain, alleyway, and courtyard, as explained in the passage there. Let me add: there were communities in which women went out veiled [see Sabbath chapter 6, "Mediaite women go out veiled"]. No one ever imagined that the veil would count as Torah law, although it is clear to me that where that is the local practice, going out without a veil would fall under Jewish custom. With respect to head covering, the Torah revealed that this practice is important in its eyes; but even here the sages fixed what they regarded as the basic level, and what they regarded as the level of a veil.
2. Alternatively, it seems to me that the law of Moses in this context is determined by the general world norm of head covering. Since women in general covered the hair of their heads, at least at the level of a kalta [and in Sanhedrin 58b, concerning when the designated maidservant receives warning: from the time she uncovers her head in the marketplace; and Rashi explains that even married gentile women customarily did not go out bareheaded], this is the practice that constitutes the law of Moses. If Jewish women wished to be stricter than this, that would then be Jewish custom.

However, if a reality develops in which the whole issue completely drops off the agenda and the world no longer sees any problem in it at all, then since the whole law is based on custom, it could in principle drop off the agenda as well.

I write these words independently of any binding commitment to Rabbi Messas’s exact position, and I write them as a defense of the generation of our mothers—in North Africa, in Lithuania, and in other places. [In my opinion, there is room for his words with respect to Rashi’s second explanation, but not with respect to the first.]

Incidentally, I would note that this distinction between the two explanations in Rashi already appears in the words of Rabbi Moshe Feinstein, of blessed memory [Even Ha-Ezer I, 57]: ‘I was asked about a woman who was widowed and needs to support her children, and cannot find employment sufficient to support them unless she does not cover her head when she is in the office at work—whether this is permitted for her. And I answered that one should permit it for so great a need, for it is obvious that even according to Beit Shmuel and Dagul Merevavah in Even Ha-Ezer 21:5, who hold from the Jerusalem Talmud that even a widow is forbidden to go with an uncovered head, this is only by virtue of Jewish custom, for by Torah law it is stated only regarding a married woman. Therefore, since the Torah did not state it in the language of a prohibition, it is only a positive obligation that she go with head covering. And it seems reasonable to me that this is what the two expressions in Rashi on Ketubot 72 differ about: according to the first expression, which explained that because we do this to her to disgrace her, measure for measure, just as she made herself attractive—“from here it follows that it is forbidden”—he holds that it is a prohibition. See also the Ritva, who wrote according to this explanation of Rashi: from here it follows that uncovering the head is immodesty for a woman, and therefore it is certainly a prohibition. But according to the second expression, which explained that because Scripture says “and he shall uncover,” it follows that until that moment her head was not uncovered, from this we learn that it is not the way of the daughters of Israel to go out with uncovered heads, it implies that it is a matter of commandment incumbent upon her to go with head covering, and not a matter of prohibition, except that it automatically becomes a prohibition because she violates the positive commandment when she goes with an uncovered head; and Rashi concludes that this is the primary explanation. The practical difference is that if it is a prohibition, it must be forbidden even where she would suffer a great loss and lose all her money; but if it is only a positive obligation, then even monetary duress of more than one-fifth counts as duress in the case of a positive commandment, for one is obligated to spend only up to one-fifth for a positive commandment. Therefore, whenever the loss amounts to one-fifth of her assets or more—as here, where she cannot obtain work to earn a livelihood for herself and her children—this is duress, and she is not obligated according to the second expression, which is the primary one.’ See also there at the end of his responsum.

I did not fully understand why, according to the second explanation, this should be a positive commandment; perhaps he means that since this was the practice, the Torah views it as a commandment to conduct oneself that way.

In my opinion, the fundamental question here is whether a custom that the Torah explicitly mentions has the same status as all other customs of modesty, which depend on time and place, or whether the very fact that it is written in the Torah admits it into the hall of eternity, so that it may not be changed under any circumstances.

See also the Gaon, author of the Hafla'ah, who wrote: “Rashi explained on ‘a warning,’ because we do this, etc. It appears that according to the first formulation [I think he means Rashi’s second explanation, as seems from the end of his words] he holds that from the implication that until that moment her head was not uncovered, this is not called Torah law; for even though it is a custom and the custom is written in the verse, it is not Torah law. Nor does the term ‘warning’ really fit, as in Sanhedrin chapter ‘the condemned is judged,’ 46b, where we cannot derive from the fact that righteous people were buried that perhaps it is merely a custom, as I wrote above further on 10b. Moreover, perhaps the Temple courtyard is different, since even on the Temple Mount they had to conduct themselves with extra awe, as in the Mishnah: a person may not enter the Temple Mount, etc. And after all, even in a synagogue the Shulhan Arukh, Orah Hayyim 91:3, states that one should not enter bareheaded, even men; so how do we know about other places? But according to the first explanation this is fine, because it is proven from the punishment that she had committed a transgression initially by uncovering her head.”

It is clear to me that there is no room at all for the excessive enthusiasm that seized him after he reached the lenient conclusion, to define everything as hypocrisy rather than modesty. I also know that in practice his own wife continued to be “hypocritical”—and modest, of course. It seems to me that in the heat of his desire to make peace and to convince the questioning rabbi that the matter could be permitted ab initio, he went too far. In any case, as a matter of finding some justification, the approach is possible—at least with respect to Rashi’s second explanation.

Practically speaking, it seems to me that one should not rely at all on this opinion, which is only one possible interpretation of Rashi’s view, while the other early authorities do not appear to have explained it that way. As stated, all this serves only as a justification for the women mentioned above.

Appendix B: Rabbi Yosef Messas’s Ruling, of Blessed Memory

From Otzar Ha-Mikhtavim – Rabbi Yosef Messas, of blessed memory

Published by Otzrot Ha-Maghreb – Bnei Yissakhar Institute, Jerusalem, 1988.

Responsum no. 1884, part III, p. 211.

To the distinguished and glorious sage, etc., the honorable Rabbi Shlomo Shushan, may his Rock preserve him and grant him life, in the holy community of Casablanca, may it be rebuilt and established, amen.

Your clear letter reached me, and because of many preoccupations I have not been able to reply until now. I have seen your question, a sage’s question that touches on himself personally, namely: about a year ago he married a woman whose head was covered, from the district of Oujda, and now he has found a place of work in Casablanca and sent for his wife to come to him. But she refuses to come except with her head uncovered, according to the custom of the place and the time. His honor did not want this, and after many exchanges of letters between them and much bodily anguish that he suffered, he accepted her condition that she come with her head uncovered. But his parents are holding him back in this matter, insisting that she not uncover her head under any circumstances, while she stands firm and will not turn back, except to reveal it. And he stands in the middle and does not know which way to go: whether to listen to his parents or to his wife. And the master asks me to offer my opinion, to find for him some ground of permission in this matter, and to show it to his parents, and to quiet the storming agitation of their hearts and make peace among the whole family.

Responsum. Know, my son, that among us here the prohibition of uncovered head for married women was very severe and strongly upheld, and so too in all the cities of the Maghreb before the coming of the French. But shortly after they came, the daughters of Israel broke through this fence, and a great uproar arose in the city from the rabbis and sages and discerning God-fearing people. Yet gradually the noise subsided into silence, and the voices ceased, for no rebuke was effective, neither gently nor with blazing fire—for the ancients said: nothing is stronger than a woman. And now all the women go out bareheaded with hair loose, except for the elderly, who cover their heads, though not all of it, leaving some exposed at the front. And when I went, with Heaven’s help, to serve in holiness in the holy city of Tlemcen some thirty years ago, I saw that the matter was simple there and throughout the region among all the women, even the old women, that all were bareheaded, with various unusual haircuts, and so the matter has spread here as well in all the cities of the Maghreb. Therefore I set my heart to justify them, for it is impossible to imagine restoring the matter now, since it develops along with the development of the times in every respect. And when I approached to search in the words of the halakhic decisors who preceded us, I found only stringency upon stringency and prohibition upon prohibition. Therefore I said: I will cast my knowledge afar to draw from the source itself—the Mishnah and Talmud and their commentators that are before me—perhaps a door of hope may be found for them to enter, for in truth it is hard for the women and for their husbands to endure this more than in any other matter, since this thing is visible to every eye. And thanks be to God, we found many openings through which to enter permissibly and not prohibitively, and these are they. The established foundation for all the decisors, upon which they have built high as their sanctuary, is what Rabbi Yishmael expounded: “And he shall uncover the woman’s head”—a warning to the daughters of Israel that they should not go out with uncovered heads, as stated in tractate Ketubot 72a. And Rashi explained: “A warning—because we do this to her to disgrace her, measure for measure, just as she made herself attractive to her adulterer; from here it follows that it is forbidden. Or alternatively, from the fact that Scripture says, ‘and he shall uncover,’ it follows that until that moment her head had not been uncovered; from this we learn that it is not the way of the daughters of Israel to go out with uncovered heads, and this is the primary explanation.” End quote.

And the difference between the two explanations is this: according to the first, it implies that the reason her hair is uncovered is to disgrace her openly, just as she acted before her adulterer to beautify herself before him with an uncovered head. This implies that it is we who are forbidden to uncover her hair in public in order to disgrace her for nothing, and only in order to apply measure for measure did the Torah permit us this prohibition so as to disgrace her. But she herself has no prohibition at all in uncovering her head; if she wished to disgrace herself, she may do so at any time she wishes, and in any place she wishes, in the house or in the field. But according to the second expression—“and he shall uncover,” from which it follows that until now it had not been uncovered—and why? Because it is not the way of the daughters of Israel to go out with uncovered heads—this implies that she herself is forbidden to uncover her hair, and that Scripture came to warn her not to depart in any way from the practice of the daughters of Israel.

You thus see explicitly that according to the first explanation there is no prohibition here at all, only disgrace; and if she wishes to disgrace herself, let her do so. And according to the second explanation as well, the prohibition is not because of the intrinsic act of uncovering hair, but because of the custom of the daughters of Israel, who were accustomed to cover their heads because in their times they thought there was modesty in this for a woman. One who uncovered her hair was considered to be breaking the fence of modesty, and therefore the Torah warned every daughter of Israel not to act contrary to the practice of the daughters of Israel in this matter.

And therefore now, when all the daughters of Israel have agreed in their minds that there is no modesty in head covering and certainly no disgrace in uncovering the head, and on the contrary the exposure of their hair is their splendor and beauty and glory, and with exposed hair a woman exalts herself before her husband and her lover—therefore we should uproot the prohibition from its root and make it permitted.

Moreover, the reasoning of Rashi’s first explanation is found explicitly in the teaching of the holy Rabbi Akiva, of blessed memory, in tractate Bava Kamma 90a in the Mishnah: “There was an incident involving a man who uncovered a woman’s head in the marketplace; she came before Rabbi Akiva, and he obligated him to give her four hundred zuz…” [because he disgraced her in the marketplace, according to their times, when an uncovered head was considered disgraceful]…

And we must know what the word “exempt” there means—exempt from what? Exempt from payment does not fit, for to whom would he pay—himself? Exempt from lashes is obvious, for where do we ever find that one who injures himself receives lashes? And I later saw Tosafot on 91b, s.v. “one who injures,” who were troubled by this and answered with difficulty that “exempt” here means that there is no side of liability, only that he does not protect his own body; see there.

But in my humble opinion Rabbi Akiva used this wording of “one who injures…” only by way of the language of a question from the law of bodily injury, where there is some prohibited aspect in injuring oneself. But in our case there is no injury here, only mere embarrassment; and according to all views a person is permitted to embarrass himself, whereas others who embarrassed him are liable, as is explicitly stated there on 91a. And so it is also in the glosses of Rabbi Isaiah in the margin of the Rif in the new Munich edition of the Talmud, where they wrote on Rabbi Akiva’s words: “one who injures” — note: “for she embarrassed herself.” End quote. This is exactly as we said.

And even regarding the foolishness of one sage who wrote to me some time ago that this should be called self-injury, I answered him that it is gross foolishness to think so, both from straightforward reason and because it is explicitly stated there in the Talmud at the end of 91a: “But our Mishnah is dealing with embarrassment,” etc.; see there. And even according to his foolishness, we find there a tanna in a baraita according to Rabbi Akiva who holds that a person may injure himself, and it is also explained there that there are tannaim who hold that a person may injure himself. Thus, according to Rabbi Akiva of the Mishnah and according to several tannaim, and according to Rashi’s first explanation, there is no prohibition at all for a woman to uncover her head. If she wishes to disgrace herself, let her do so; all the more so according to the truth, since there is here only an aspect of embarrassment, and therefore a person is permitted to embarrass himself, as explained above.

And further, we find tannaim who hold that we do not say, “from the affirmative you infer the negative,” as in tractate Shevuot 35a in the Mishnah: “May He not strike you, bless you, and do good to you”—Rabbi Meir obligates and the sages exempt. And Rashi explained: Rabbi Meir obligates because from the negative you infer the affirmative—“may He not strike you” if you testify for me, and if you do not testify for me, may He strike you. But the sages exempt because we do not say this. So here too in our matter we might say that they do not hold like Rabbi Yishmael, that “and he shall uncover” is a warning in the form of a prohibition, because we do not infer from the affirmative, etc.

And even more compelling than all this: the meaning of Rabbi Yishmael’s words is not as we superficially understand them, as standing on one leg only—that is, mere uncovering of the head. Rather, his words stand on two legs, meaning two defects: exposed hair and hair loosened from its braid and ties. But mere exposed hair alone is not included in the warning at all…

You have thus seen that the meaning of “and he shall uncover the woman’s head” is that he uncovers it and loosens it. And on this Rabbi Yishmael said: a warning to the daughters of Israel that they should not go out with uncovered heads—that is, with hair exposed and loosened from its braid and disheveled. But if she only exposes it while it is braided, or combed and arranged, with no disgrace in it at all, we have no issue with it. And all this is so even according to their times.

And one sage wrote to me a proof for prohibition from the story of Kimhit, who merited seven sons who served as High Priest in her lifetime because the beams of her house never saw the braids of her hair, implying from this that it is a great prohibition, and one who is careful with it receives great reward even in this world. And I answered him that he surely heard the story from an old woman telling tales, and did not see the story in its source, which is in Yoma 47a: “The Sages taught: Kimhit had seven sons and all of them served as High Priest. The sages said to her: What did you do to merit this? She said to them: In all my days the beams of my house never saw the braids of my hair. They said to her: Many did so, and it did not help them.” End quote. You see that the sages rejected her words as merely the talk of an old woman, because they knew that there was no prohibition in this, only a custom practiced by the daughters of Israel.

The upshot of all this is that this matter of head covering for women stems only from custom alone, which in earlier times they considered modesty, and one who acted contrary to the custom was considered immodest. However now that women have reached a consensus that there is in this no disgrace and no immodesty, heaven forbid, and that there is no modesty in head covering, only hypocrisy, and a transgression of a positive commandment occasioned by time—therefore the prohibition has departed.

And if you should say: merely because people have adopted a permissive practice in a prohibited matter, is the prohibition uprooted from its place? This is not a difficulty. First, because this is not a prohibition at all, only a custom whose rationale has lapsed; and even a prohibition whose rationale has completely lapsed, its prohibition lapses—for example, uncovered liquids, even though this is a matter of danger, which is more severe than prohibition, and was something forbidden by formal vote, as Tosafot wrote on Beitzah 6a; nevertheless now that snakes are not found among us, it is permitted, as Maran wrote in Yoreh De‘ah 116:1. All the more so in our case, whose entire basis is a women’s custom whose rationale has lapsed.

And further, we find the Gaon Maharam Alashkar, of blessed memory, who wrote in responsum 35: “You asked, my friend, whether there is reason to be concerned about those women who have the practice of revealing hair outside their braids in order to beautify themselves with it, in light of what we heard from one who ruled for them that it is absolutely forbidden, and explicitly said that a woman’s hair is nakedness. Responsum: There is no concern at all regarding that hair, since they are accustomed to reveal it, even with respect to the recitation of Shema. And that statement, ‘a woman’s hair is nakedness,’ refers only to hair that a woman ordinarily covers, similar to a handbreadth,” etc. See there at length. And he also added in the name of the Ravyah that all the things they mentioned as nakedness apply only to things that are not ordinarily revealed. But with a virgin, who is accustomed to revealing her hair, we are not concerned. See there. And he added further there that even those who come from a place where they are accustomed to cover that hair are permitted to reveal it in a place where the custom is to reveal it.

And we may add something self-evident to every student, namely: nowadays, since all women reveal all the hair of their heads, the hair of married women has reverted to being like the hair of virgins, since all alike are accustomed to reveal it. For this is the reason regarding virgins: because they are accustomed to reveal it, its exposure is not called immodesty. The same law and the same reason apply nowadays to married women who are accustomed to reveal it, for there is no immodesty in this at all, heaven forbid. And likewise regarding what was said, “a woman’s hair is nakedness” in Berakhot 24: the reason there in the case of virgins is that one does not come to improper thoughts from what one is accustomed to seeing; the same applies today to married women who are accustomed to reveal it—there are no improper thoughts from what one is accustomed to seeing. And every person can see from his own flesh, for he sees thousands of women passing before him day after day with uncovered heads and does not set his heart upon them; and if someone does have improper thoughts, it is not because of the exposed hair. This, my friend, is what appears to me in my humble opinion to be clear in all this. There is much more to elaborate, but time does not allow, and there is no further need for length. And now your parents’ eyes will see and rejoice, and peace shall be within your walls, tranquility within your palaces, amen.

The young one, the undersigned, a servant of the holy community of Meknes, may it be rebuilt and established, in Tevet of this year, and “let each man return to his family” [1954], according to the minor era. Signed, Yosef Messas.

[1] See the responsa Ve-Heshiv Moshe, by Rabbi Malka, no. 34.

[2] Although that is not the law according to Maimonides in Laws of Forbidden Intercourse 21:17, which was also brought as law in the Shulhan Arukh, Even Ha-Ezer 21:2: The daughters of Israel may not go with uncovered heads in the marketplace, whether unmarried or married. The Bah and the Vilna Gaon there already asked: from where did Maimonides derive the addition of a prohibition even for an unmarried woman? They explained that Maimonides inferred this from the wording of the school of Rabbi Yishmael, which says to the daughters of Israel and not to the woman.

[3] The ruling appears as an appendix at the end of the article.