Avodah Mailing List

Volume 06 : Number 086

Friday, December 29 2000

• Re: haircovering
• re:hair as das moshe etc.
• Re: Sei'ar beIshah
• Re: hair covering as a das yehudis or a das moshe
• hair covering as a das yehudis or a das moshe
• hair covering as a das yehudis or a das moshe
• Re: hair covering as a das yehudis or a das moshe (fwd)

From: Micha Berger <micha@aishdas.org>
>  So paskens R' Ovadia Yosef. Although his kehillah was /not/ remiss, they
>  merely thought they were doing so because the Arab gov't required it.

afaik SA doesn't make a distinction for learning/brachot/davening as 
ROY does, which implies it isn't a question of tsniut.

i was surprised to see that in a sephardic shul in flatbush, most of 
the women picked up black nylon kipot from the basket outside the 
door.

janet

Rabbi Bechhofer quotes:
> R' Moshe (IM EH 1:57) holds that it is mandatory that all women who are
> married or have been married cover their hair. ...
> a woman *currently unmarried*, since the obligation is "only" a Mitzvas
> Aseh, like all other Mitzvos Aseh, one is not required to spend more
> than one-fifth of one's wealth to fulfill that Aseh.

This is a tremendous chidush, is it not?  First, RMF is equating not
earning to spending. Where do we see that it is permissible not to
perform an aseh in order to earn money?  Would we say that if someone
will be unemployed if he puts on tfilin (e.g., his just calls for him to
be at work from before zman tfilin until night), that he will be exempt
from mitzvas tfilin? Further, if it is only an aseh that hair be covered
(in the words of the Rashi he cites for this point of view, ain derech
b'nos Yisrael latzes pruei rosh), shouldn't it follow that the standard
for a previously married woman be merely that there be a hair covering,
but not that no hair be uncovered, since the aseh is then fulfilled?

Sadya N. Targum

In message <4A9C93D719EDD211AFB30008C7B1F9FF01E01568@ny01.cm-p.com>,
Feldman, Mark <MFeldman@CM-P.COM> writes
>> Although note that when the gemorra in Nazir 28b wanted to explicitly
>> refer to a wig, it has a different term "pe'ah nochris".

>But note that the lashon haYerushalmi is often different from the Bavli
>(different dialects of Aramaic).  Moreover, as the Palestinian Amoraim were
>living in an area where Greek & Latin was still spoken (among the goyim), it
>is not surprising that a Latin word would creep into Palestinian Aramaic....

Sorry, I think I misunderstood what you were saying.  I understood you
to be saying that because the term used in the Yerushalmi could be
translated as wig, one should therefore translate the equivalent word in
the Bavli (ie "kalsa") as the word for wig.

What you now appear to be saying is that the Bavli and Yerushalmi are
saying different things, the Yerushalmi referring to wigs and the Bavli
referring to kalsa (basket? small hat?).

In which case, aren't what you saying is that the Bavli and Yerushalmi
contradict? In which case one might ask the question *why* did the Bavli
chose to use kalsa and not peah nochris?  At least arguably it was
because it disagreed with the Yerushalmi about wigs.  And if we have a
disagreement between the Bavli and the Yerushalmi, don't we generally
posken like the Bavli against the Yerushalmi?

>>                                    But the shok in a human being is
>> discussed elsewhere eg Mishna Oholos 1:8 on listing the different bones
>> in the human body which are metamei and Nazir 52b which brings the
>> tosephta that rov binyan (one of the tests for tumas ohel) is m'shnei
>> shokiim v'yerech echad...

>But the fact remains that there is a machlokes of latter-day achronim what
>"shok" means.  Obviously, there was not a clear tradition what shok means in
>the context of the human body...

I guess what I am trying to understand is why there is not a clear
textual source, when if you read oholos, and sit down with one of the
plastic skeletons you find in a doctor's surgery, I would have thought
you would end up with a pretty clear answer, especially if you know that
two shokiim and one yereich make rov binyan (and Kehati quotes some
other useful tosephtas, that help clarify things).  (I have done
neither, and I am no doctor, but I would be extremely surprised if the
specificity of it would lead to extensive argument if the exercise were
done. Just because *I* am not sure how many calf bones and thigh bones
and top pieces there are in the human leg, which, it seems to me, is the
critical piece of information for sorting out which bone is what,
doesn't mean that sort of information is not readily obtainable).

>mimeticism--women covered certain parts of their bodies but didn't have a
>mesorah whether this was absolutely required by the halacha or just tznius).
>In contrast, there was a clearer mesorah with regard to animals & hilchos
>shchitah, which is why R. Willig brought the r'ayah.

I tend to agree that there is no *masora* regarding what shok meant in
women's covering (or at least the masora may well be in contrast to the
texts - since the masora is generally that the calf is not included) but
what has just been quoted is not strictly speaking masora either, it is
a textual source, which is no different from an Oholos textual source.   

Regards
Chana

I am going to address only the issues that I myself raised:

At 11:04 PM 12/28/00 -0500, Michael J Broyde wrote:
>> There are two elements in EH 21:
>> 1. The element of modest attire - that is immutable...
>> 2. The element of interaction. The Ritva you quoted earlier, and the Remo...
>> pertain to that element, not the one of personal modesty.

>I confess that I do not understand this view.  Rabbi Bechhoffer is saying
>that context has nothing to do with modest attire, but physical
>interactions are context determine.  Does this mean that a woman can or
>cannot reveal parts of her body in the course a medical examination to a
>male doctor?  Certainly body parts are revealed that are covered by the
>objective issurim found in EH 21? Am I understanding you correctly that
>such conduct -- revealing body parts which in the context of their
>revelation are completely modest and proper-- constitutes a categorical
>violation of the halacha?  But yet the touching of those parts by the
>doctor is permitted because that is a physical interaction?  Please help
>me understand.

I am somewhat surprised by RMJB's forgetfulness of  the concept of 
"b'ividetei torid" which is the basis of the heter for a woman to be 
examined by a male doctor, and several other normally inappropriate forms 
of gazing and touching. Let me helpfully refer you to the Shach YD 195:20, 
and to a very good discussion of the matter - including our Ritva - in the 
Nishmas Avrohom there pp.110-115. The standard of tzeni'us is constant and 
unchanging - the heter here is narrow and specific.

>> Come, come. How, now would you pasken for those who are sar
>> l'mishma'atecha?

>I will take him up on this.  A limud zichus is a plusible path not taken
>by the poskim.  Let me elaborate.  Sometime sources are unclear in the
>talmud (or rishonim, or achronim), and debate follows.  Sometimes one
>posek advances a view which is plausible in the sources, but does not
>disprove other plausible views.  In those circumstances, since anylitical
>proof does not work, as neither side can logically prove the other wrong,
>we realy on second level rules as to what we should do.  Sometime, indeed,
>views that are anylitically plausible are not taken by any halachic
>authorities and one should not follow a practice not endorsed by poskim
>even if it is anylitically plausible within the sources.  When someone
>notes that this particular practice can be defended if one heads down the
>path not taken by the poskim (or by a minority of poskim), and no one can
>prove this path wrong -- i.e., inconsistent with the sources -- that is a
>limud zechut.

I still do not understand: Is the purpose of this exercise on your part an 
attempt to mitigate the error of the ways of women who do not cover their 
hair, or something more. The question, as I posed it, stands unanswered: 
You are a Rov and Moreh Horo'oh b'Yisroel (one of the more talented ones!). 
What do you pasken for your kehillo, and, IY"H, eventually, for large 
segments of Am Yisroel?

>> Again, as of now you have no precedent (and I think you are incorrect) to
>> apply the Ritva to attire.

>To which I respond again that interaction and attire are one and the same
>practically.  Indeed, Maharam Alshakar 35 at the end of the teshuva
>explictly notes that the custom of partial uncovering of hair is different
>for Jews in the  Christian lands (which prohibit this) and the the Islamic
>lands (which permit) this and people have to obey the normal modest
>practices in their community.  It is a minhag hamakom (which I would call
>a das yehudis).  Rabbi Bechhoffer seems to deny that location places any
>role in what can or must be covered or uncovered.

Absolutely!

They are not one and the same.

A woman must constantly adhere to the dictates of Hilchos EH 21. If she 
does not, we fall into the discussion of EH 115. The variation in how much 
hair escapes the covering is akin to the issue of what the shiur of kezayis 
is l'gabei mitzvos: a specific detail of the mitzva over which we Jews tend 
to quibble. But just as there is no source that allows for eliminating 
Mitzvas Matzo, there is none (except, I think, for some 20th century rabbi 
in Bucharest) for elimintaing Mitzvas Haircovering.

>We then discussed Rav Moshe's view of unmarried women uncovering their
>hair. Rabbi Bechhoffer writes:
>
>> R' Moshe (IM EH 1:57) holds that it is mandatory that all women who are
>> married or have been married cover their hair....
>> woman *currently unmarried*, since the obligation is "only" a Mitzvas Aseh,
>> like all other Mitzvos Aseh, one is not required to spend more than
>> one-fifth of one's wealth to fulfill that Aseh.

>This is completely incorrect, and I quote.  Iggrot Moshe EH 1:57 states:
>"It is obvious that even according to the Beis Shmuel and noda beyehuda in
>EH21:5 who accept that even a widow and divorcee have to cover their hair,
>this is only a das yehudis, since according to torah law only a currrently
>married woman has to cover her hair."  Rabbi Feinstein continues "but with
>an widow since the whole prohibition is only das yehudis, one can be
>lenient, because of the doubt, as das yehudis is no stricture than
>rabbinic prohibitions, whose doubt is resolved leniently."  Rabbi
>Feinstein then adds "perhaps das yehudis is only a custom."

>This is confirmed by Iggrot Moshe EH 4:32 who notes that a divorcee need
>not cover her hair when it prevents her from remarrying as -- and I quote
>-- "a divorcee does not have to cover her hair because of torah law but
>only because of das yehudis."

...
>> Let us draw an analogy. R' Moshe holds that the nature of the obligation
>> vis a vis a currently married woman is that of a Lav. It is, therefore,
>> like,  say, Achilas Treifos, that, short of Piku'ach Nefesh is assur. Vis a
>> vis a once married, but currently unmarried woman the obligation is similar
>> to a man's obligation to wear tefillin. There are extenuating circumstances
>> in which one may forgo Tefillin, but the daily obligation is constant and
>> non-changing.

>The above paragraph is wrong.  Rabbi Bechhoffer, please confirm that you
>retract this read of Iggrot Moshe and I would ask RDE to comment as well.

I must go off on a tangent to protest (mildly!) the "academic"
language. We do not "read" or have "reads" of IM's. We learn them.

From my perspective, you are stuck in orbit in a universe of your
own making. You are convinced that distinctions between DM and DY are
meaningful across the board and are therefore intent on sticking to that
dichotomy even though it is almost never relevant.

I am reminded here of a story I think I once told here, that the former
Rosh Yeshiva of Sha'alvim was once asked by a young couple in Mishmar
Ayalon if he would teach them all Hil. Nidda d'orysa, but no d'rabbonons,
as they would consider keeping the former, but not the latter. The RY
asked RSZA if he might do accordingly, and RSZA ruled negatively. It
was RSZA's response that is emblazoned on my memory: Whether the source
is d'orysa or d'rabbonon is irrelevant. We have (in halacha l'ma'aseh)
one Torah, and it cannot be cut in two. (I assume this falls under the
rubric of what RHS brands "ziyuf ha'Torah".

R' Moshe is certainly not a fellow wayfarer in your universe here! The
chilluk *here* between d'orysa and d'rabbonon for him is merely the
equivalent of the chilluk between an aseh and a lav. Let me outline how
he gets there:

R' Moshe notes that for currently married women the chiyuv is d'orysah. 
There is, in the d'orysah, a safek if the chiyuv is an aseh or lav. If it 
is a lav, then no makom hefsed can serve as a heter, while if it is an 
aseh, then makom hefsed can serve as a *limited* (note his stricture in the 
teshuva in EH 4:32 you cited!) heter. Since safek d'orysa l'chumra, a 
married woman has no room for leniency (as I write this, I am becoming 
totally bewildered as to how you possibly can use the IM as the basis for 
even a limud zechus for currently married women. You seem to be burning 
some candle out there at both ends).

But, a currently unmarried, once married woman is only chayav d'rabbonon. 
So for her, we can say safek d'rabbonon l'kulla and treat the chiyuv as an 
aseh. Thus makom hefsed becomes a potential factor. He says that this is 
certainly a logical argument if the haircovering of a currently unmarried 
woman is "*me'dinei* minhag".

I will agree to slighly modify the paragraph you quote from me above. Here 
it is emended (emendations in brackets):

 > R' Moshe (IM EH 1:57) holds that it is mandatory that all women who are
 > married or have been married cover their hair. Period. His distinction,
 > based on the difference in the obligation, leads to his chiddush that for a
 > woman *currently unmarried*, since the obligation is "only" [based on 
safek d'rabbonon l'kulla] a Mitzvas Aseh,
 > like all other Mitzvos Aseh, one is not required to spend more than
 > one-fifth of one's wealth to fulfill that Aseh. But the requirement is
 > immutable and non-relative. Thus, in situations where the loss would be
 > less than one-fifth, the obligation immediately returns in full force.

>>>"There is yet another prohibition governing the conduct of women, based on
>>>the rules of das yehudis as found in ketubot 72a, not to behave
>>>immodestyly, but this only applies when she herself engages in this
>>>conduct, but when it is the standard of all women in her city to do this,
>>>THIS CANNOT BE CONSIDER IMMODEST [PERETZUT] and one cannot even argue
>>>that this conduct of [religious] women is caused by immodesty, since
>>>nevertheless it is the manner of their dress and conduct, one cannot
>>>consider this immodest and one cannot consider it assur, or prohibit it
>>>to them, but only as a [derech chasidut] extra pious conduct for
>>>[tziniyut yetera] heightend modesty [not required by halacha"

>and Rabbi Bechhoffer responded:
>> Oy vey! The IM there is discussing what *women* may or may not observe in
>> *other women* lest they come to hirhur! This is totally irrelevant to the
>> discussion at hand! He saying that modest women need not be afraid that by
>> viewing immodest women they will come to lustful thoughts, since that is
>> the standard of the city, and to prohibit that would be only derech
>> chassidus ( I assume he is discussing a scenario of modestly attired women
>> bathing in a swimming pool with immodestly attired women, etc.).

>I do not think that this is correct.  Rabbi Feinstein in the final
>paragraph is addressing what women themselves may do, and not what they
>may watch.  I still do not get the distinction Rabbi Bechhoffer posits.

Are you quite sure about that? I am not. I am pretty sure the opposite is 
the case. But I am willing to concede some ambiguity. But, that ambiguity 
robs you of your basis. Tough break!

>Again, I ask Rabbi Bechhoffer, according to your view, may a woman reveal
>parts of her body to a doctor as part of a medical exam, and if so why?
>Is that not attire?

Answered above.

First of all, wanted to applogize to the readers of avodah and averirm for
double posting my two posts.  I applogize.  

There were three different posts responding to something that I wrote, and
I will respond to them in the order they were sent to me.

Putting aside issues of tone or polemics, Rabbi YH Henkin advances his
view that there is a dispute amoung the rishonim about what makes
something a dat moshe and what makes something a dat yehudis:

Rabbi Henkin insistes that:
> Rashi and the Rambam's definition of dat Moshe as
> Torah law (or at least an asmachta for a rabbinic decree) as opposed
> to dat Yehudit which originates in custom. According to them, going
> completely bareheaded is dat Moshe, while going partially or inadequately
> covered is only dat Yehudit.

and 
> The Semak, Rosh, and Tur, however, have a completely different
> understanding of dat Moshe and dat Yehudit. Nowhere do they mention
> minhag in connection with dat Yehudit. Their approach is that dat Moshe
> refers to cases where the wife actively caused her husband to violate a
> prohibition, such as by feeding him untithed produce, while dat Yehudit
> refers to brazen behaviour which creates a presumption that she may be
> promiscuous (chatzifuta vechashad znut), such as by going bare-headed. Dat
> Yehudit, according to this, can mean the wife's violation of even Torah
> prohibitions. 

I found this view difficult to understand in view of the text of the
Shulchan Aruch itself, which clearly accepts the fomulation of das moshe
and das yehudis used by the rambam, and calls das yehudis "minhag tzunuyut
shenohagu benot yisrael" and classifies hair covering as such and as a dat
yehudit. Rabbi Henkin seems to be responding to this by saying "good
question" ('tzarich iyun' is his exact response, if I recall from his
teshuva and this posting), which seems deeply deeply unsatisying; I will
pose the question directly to Rabbi Henkin then.  If one accepts your view
as correct, is the following statement correct?

	It is it the view of the shulchan aruch itself (which accepts the
	categories of das moshe and das yehudis of the Rambam which define
	das yehudis as haveing a societal component, but the
	categorization of full uncovering of hair as a das yehudis taken
	from the rosh and tur) that full hair uncovering is a das yehudis
	as defined by the Rambam (ie, permitted when society permits it).  

If this is not the view of the Shulchan Aruch, what then is his view?

Please undertake to explain the view of the Shulchan Aruch itself
consistent with your explanation?  Otherwise, your observation only seems
to confirm my view that the simple understanding of the Shulchan Aruch
itself (I used the phrase 'shulchan aruch jew') would agree that a married
woman does not have to cover her hair except when it it required as a das
yehudis as the term is used by Rambam, referring to a society where women
cover their hair generally.

Onto the next posting, by Rabbi Bechhoffer.  Rabbi Bechhoffer writes:

> There are two elements in EH 21:
> 
> 1. The element of modest attire - that is immutable, subject only to 
> variation of opinion on what is shok, how much hair may escape the 
> covering, etc. - issues not expressly clarified in the SA and NK (Nosei 
> Keilim).
> 
> 2. The element of interaction. The Ritva you quoted earlier, and the Remo 
> (which, BTW, as you allude to in your parentheses, is good proof to assur 
> mixed dancing, even bein ish l'ishto, in public) pertain to that element, 
> not the one of personal modesty.

I confess that I do not understand this view.  Rabbi Bechhoffer is saying
that context has nothing to do with modest attire, but physical
interactions are context determine.  Does this mean that a woman can or
cannot reveal parts of her body in the course a medical examination to a
male doctor?  Certainly body parts are revealed that are covered by the
objective issurim found in EH 21? Am I understanding you correctly that
such conduct -- revealing body parts which in the context of their
revelation are completely modest and proper-- constitutes a categorical
violation of the halacha?  But yet the touching of those parts by the
doctor is permitted because that is a physical interaction?  Please help
me understand.

Rabbi Bechhoffer then calls upon me to eleborate on my view of what is a
limud zechus, with his notation that:
> Come, come. How, now would you pasken for those who are sar
> l'mishma'atecha?

I will take him up on this.  A limud zichus is a plusible path not taken
by the poskim.  Let me elaborate.  Sometime sources are unclear in the
talmud (or rishonim, or achronim), and debate follows.  Sometimes one
posek advances a view which is plausible in the sources, but does not
disprove other plausible views.  In those circumstances, since anylitical
proof does not work, as neither side can logically prove the other wrong,
we realy on second level rules as to what we should do.  Sometime, indeed,
views that are anylitically plausible are not taken by any halachic
authorities and one should not follow a practice not endorsed by poskim
even if it is anylitically plausible within the sources.  When someone
notes that this particular practice can be defended if one heads down the
path not taken by the poskim (or by a minority of poskim), and no one can
prove this path wrong -- i.e., inconsistent with the sources -- that is a
limud zechut. 

Rabbi Bechhoffer then repeats:

> Again, as of now you have no precedent (and I think you are incorrect) to 
> apply the Ritva to attire.

To which I respond again that interaction and attire are one and the same
practically.  Indeed, Maharam Alshakar 35 at the end of the teshuva
explictly notes that the custom of partial uncovering of hair is different
for Jews in the  Christian lands (which prohibit this) and the the Islamic
lands (which permit) this and people have to obey the normal modest
practices in their community.  It is a minhag hamakom (which I would call
a das yehudis).  Rabbi Bechhoffer seems to deny that location places any
role in what can or must be covered or uncovered.

We then discussed Rav Moshe's view of unmarried women uncovering their
hair. Rabbi Bechhoffer writes:
 
> R' Moshe (IM EH 1:57) holds that it is mandatory that all women who are 
> married or have been married cover their hair. Period. His distinction, 
> based on the difference in the obligation, leads to his chiddush that for a 
> woman *currently unmarried*, since the obligation is "only" a Mitzvas Aseh, 
> like all other Mitzvos Aseh, one is not required to spend more than 
> one-fifth of one's wealth to fulfill that Aseh. But the requirement is 
> immutable and non-relative. Thus, in situations where the loss would be 
> less than one-fifth, the obligation immediately returns in full force.

This is completely incorrect, and I quote.  Iggrot Moshe EH 1:57 states:

"It is obvious that even according to the Beis Shmuel and noda beyehuda in
EH21:5 who accept that even a widow and divorcee have to cover their hair,
this is only a das yehudis, since according to torah law only a currrently
married woman has to cover her hair."  Rabbi Feinstein continues "but with
an widow since the whole prohibition is only das yehudis, one can be
lenient, because of the doubt, as das yehudis is no stricture than
rabbinic prohibitions, whose doubt is resolved leniently."  Rabbi
Feinstein then adds "perhaps das yehudis is only a custom."

This is confirmed by Iggrot Moshe EH 4:32 who notes that a divorcee need
not cover her hair when it prevents her from remarrying as -- and I quote
-- "a divorcee does not have to cover her hair because of torah law but
only because of das yehudis."
 
[Rabbi Bechhoffer, please read this two teshuvas again, to cofirm my read,
or to still disagree. Your analysis of the two types of torah
prohibitions is Rav Moshe's view of the two dayot in Rashi with regard to 
married women, rather than unmarried women.] 

> Let us draw an analogy. R' Moshe holds that the nature of the obligation 
> vis a vis a currently married woman is that of a Lav. It is, therefore, 
> like,  say, Achilas Treifos, that, short of Piku'ach Nefesh is assur. Vis a 
> vis a once married, but currently unmarried woman the obligation is similar 
> to a man's obligation to wear tefillin. There are extenuating circumstances 
> in which one may forgo Tefillin, but the daily obligation is constant and 
> non-changing.

The above paragraph is wrong.  Rabbi Bechhoffer, please confirm that you
retract this read of Iggrot Moshe and I would ask RDE to comment as well.

I then noted:
> >"There is yet another prohibition governing the conduct of women, based on
> >the rules of das yehudis as found in ketubot 72a, not to behave
> >immodestyly, but this only applies when she herself engages in this
> >conduct, but when it is the standard of all women in her city to do this,
> >THIS CANNOT BE CONSIDER IMMODEST [PERETZUT] and one cannot even argue
> >that this conduct of [religious] women is caused by immodesty, since
> >nevertheless it is the manner of their dress and conduct, one cannot
> >consider this immodest and one cannot consider it assur, or prohibit it
> >to them, but only as a [derech chasidut] extra pious conduct for
> >[tziniyut yetera] heightend modesty [not required by halacha"

and Rabbi Bechhoffer responded:
> Oy vey! The IM there is discussing what *women* may or may not observe in 
> *other women* lest they come to hirhur! This is totally irrelevant to the 
> discussion at hand! He saying that modest women need not be afraid that by 
> viewing immodest women they will come to lustful thoughts, since that is 
> the standard of the city, and to prohibit that would be only derech 
> chassidus ( I assume he is discussing a scenario of modestly attired women 
> bathing in a swimming pool with immodestly attired women, etc.).

I do not think that this is correct.  Rabbi Feinstein in the final
paragraph is addressing what women themselves may do, and not what they
may watch.  I still do not get the distinction Rabbi Bechhoffer posits.
He agrees that interactions are contextual and that all the things
discussed in SA 21 that deal with interactions are determined by context
(and he includes in that direct physical touching, I assume), but
standards of dress are immuatable.    RDE, would you comment on this as
well?

Again, I ask Rabbi Bechhoffer, according to your view, may a woman reveal
parts of her body to a doctor as part of a medical exam, and if so why?
Is that not attire? 

Onto the next post.  Rabbi Goldstein writes:
> 1. SA: He wrote: her head uncovered, and she has a large hat [ridid]
> even though her head is covered with a scarf. Does this mean she is
> wearing 2 hats? If so, hardly a source for uncovered hair.

I think he misses the point.  No where in the SA does he quote a
prohibition to cover hair that is either a torah prohibition or a das
moshe.  From that fact and the clear langauge "EVEN if here hair is
covered with a scarf" as a das yehudis, one can easily claim that
uncovered hair is always a das yehudis.  [Indeed, I think Rabbi Henken
admits that, but trys to prove that das yehudis means something different
that what I think it means.]

It is the absence of the prohibition as immutable and unchangable in the
SA that the limud zichus turns on.

Michael Broyde

Rabbi Bechhoffer writes:
> I am somewhat surprised by RMJB's forgetfulness of  the concept of 
> "b'ividetei torid" which is the basis of the heter for a woman to be 
> examined by a male doctor, and several other normally inappropriate forms 
> of gazing and touching. Let me helpfully refer you to the Shach YD 195:20, 
> and to a very good discussion of the matter - including our Ritva - in the 
> Nishmas Avrohom there pp.110-115. The standard of tzeni'us is constant and 
> unchanging - the heter here is narrow and specific.

I think this concept is exactly correct, which is that context (in this
case, the utter absence of sexual context) permits the revealing of body
parts. Surely you recognize that this heter is not a limited on, but a
general one, that allows conduct for afield from medical procedures.  For
example Iggrot Moshe EH 2:14 invokes this concept to allow travel on a
crowed subway where people bump, press and grind without any sexual (or
medical) connotation at all -- all based on this Shach.  The heter is not
"narrow and specific" as Rabbi Bechhoffer posits, but allows for direct
physical contact.  

To quote Rabbi Feinstein "in the context of touching and pressing women
[in the subway, by accident] there is no prohibition since this is not in
the manner of sexual gratification or arousal (tava vechiba) and all
touching of people who are prohibited to marry are -- even according to
the Rambam who rules sexual touching a a torah violation -- is limited to
cases of touching or sexual gratification."  

Thus, this heter, like the Ritva cited in the pitchai teshuva, is limited
to (and I agree) cases where there can be no sexual overtones -- but I
posit that the rules for attire and the rules for interactions are subject
to the same set of guidelines, and the same set of strictures and
leniencies.  Nothing more and nothing less.  You posited that they are
different, and I see this as an example of them being the same.

Rabbi Bechhoffer poses a fascinating question about the relationship
between my limud zechus and my own answering of shealos, and I will post
an answer to that question soon, but now I am still knee deep in the
sources!

Rabbi Bechhoffor repeats:
> A woman must constantly adhere to the dictates of Hilchos EH 21. If she 
> does not, we fall into the discussion of EH 115. The variation in how much 
> hair escapes the covering is akin to the issue of what the shiur of kezayis 
> is l'gabei mitzvos: a specific detail of the mitzva over which we Jews tend 
> to quibble. But just as there is no source that allows for eliminating 
> Mitzvas Matzo, there is none (except, I think, for some 20th century rabbi 
> in Bucharest) for elimintaing Mitzvas Haircovering.

I think haircovering is different, in that the amount of matzah one eats
does not vary based on location, but the amount of hair (after the torah
requirement is met) one must cover (the das yehudis) can.  Maharam
Alshaker 35 does not give a measurement, which one can quibble with.  
Rather, he states that in locations where the norm is to uncover some hair
it is mutar to do so, and in places where the norm is not to uncover, it
is assur to do so.  This is not like Rav Chaim Naheh and the Chazon ish
arguing about what is a kezayit.  Maharam Alshakar thinks that this matter
is dependent on local custom.

Rabbi Bechhoffer then writes:
> R' Moshe notes that for currently married women the chiyuv is d'orysah. 
> There is, in the d'orysah, a safek if the chiyuv is an aseh or lav. If it 
> is a lav, then no makom hefsed can serve as a heter, while if it is an 
> aseh, then makom hefsed can serve as a *limited* (note his stricture in the 
> teshuva in EH 4:32 you cited!) heter. Since safek d'orysa l'chumra, a 
> married woman has no room for leniency (as I write this, I am becoming 
> totally bewildered as to how you possibly can use the IM as the basis for 
> even a limud zechus for currently married women. You seem to be burning 
> some candle out there at both ends).

I do not think in even the vaguest way that Rav Moshe is the slightest
form of a limud zechut for married women not to cover their hair -- such a
proposition is silly.  Rav Moshe is, however, quite source for supporting
the proposition that rabbinically required forms of modesty are dependent
on the norms of society.  Rav Moshe is quite clear that fully uncovered
hair is not one of the rabbinically directed forms of modesty, at all.  
Unmarried women's hair is, and Rav Moshe is prepared to permit women who
are covered by the das yehudis obligation to uncover.  Thus, in IM EH 4:32
he permits a divorcee to uncover, and the same rationale is used by Rabbi
Willig to permit partial uncovering (and is noted by IM also as a grounds
for partial uncovering (although he gives others).  All that I desire to
note is that das yehudis uncovering is quite different than das moshe
uncovering.  (This then nicely dovetails into my limud zechut, which notes
that the Shulchan Aruch itself classifies even full uncovering as merely a
das yehudis.)

Rabbi Bechhoffer then adds:
> From my perspective, you are stuck in orbit in a universe of your own 
> making. You are convinced that distinctions between DM and DY are 
> meaningful across the board and are therefore intent on sticking to that 
> dichotomy even though it is almost never relevant.

I think, on the other hand, that the DM/DY distinction is critical, as Das
yehudis obligations have a component of the subjective. 

Rabbi Bechhoffer then adds:
> I am reminded here of a story I think I once told here, that the
> former Rosh Yeshiva of Sha'alvim was once asked by a young couple in
> Mishmar Ayalon if he would teach them all Hil. Nidda d'orysa, but
> nod'rabbonons, as they would consider keeping the former, but not the
> latter. The RY asked RSZA if he might do accordingly, and RSZA ruled
> negatively. It was RSZA's response that is emblazoned on my memory:
> Whether the source is d'orysa or d'rabbonon is irrelevant. We have (in
> halacha l'ma'aseh) one Torah, and it cannot be cut in two. (I assume
> this falls under the rubric of what RHS brands "ziyuf ha'Torah".

Whatever the merits of this story, tzinuyot matters are different, as they
are intrinsically subjective, and while th deorayso/derabban distinction
is not relavent, the subjectice/objective distinction is!  Thus, one
cannot teach about the practical laws of a man not wearing a woman's
garments (a torah prohibition) without noting that it has a subjective
component.  Das Yehudis (which can even be torah prohibitions, in the
sense of lo toteru) nonetheless have a society and contextual
component.  That is the exact notion advanced by Rama in EH 21:5.  Thus,
to me das moshe/da yehudis distinctions are not torah/rabbinic but rather
objective/subjective, which we all recognize as crucial in the real world.
Objectifying the subjective leads to sin, as it produces undo leniency.
Subjectifying the objective leads to sin, as it produces leinincy too.

Thus, the orbit that I am stuck in, is the orbit that I see as dictated by
the halacha itself, from which one cannot escape even by being an
objectivist, as that too leads to sin. Things that are modest in one
society are immodest in another, and the reverse too.  Thus, we must
always look at a modesty prohibition to determine whether it is objective
or subjective.  Objective ones do not change, and subjective ones do.
Full hair uncovering is an objective issur according to almost all
concemporary poskim (but not, if I am reading it correctly, the Shulchan
Aruch).

In my view, by the way, the objective/subjective distinction in hilchot
tzinuyot is neither strict not lenient.  Thus, according to Rabbi
Bechhoffer's analysis, even if society as a whole returned to viewing hair
as erotic, and all modest gentile women covered all their hair, it would
not be a violation to reveal hair, according to those who permit hair
revealing (like Maharam Alshakar and Iggort Moshe).  In my view this is
wrong; no one permits hair to be revealed when it is deemed immodest.  The
poskim who permitted partial hair to be revealed did so because they felt
it was no longer immodest and it was not governed by the objective (das
moshe) prohibition, but the subjective, das yehudis, one.

I will, bli neder, answer the question about the role of limud zechut in
my own shaylas after shabbat (most likely Monday, to be honest, as I will 
be in NY for the OU convention on Sunday.) It is now but 14 hours to
Shabbat in Atlanta.

Michael J. Broyde

> RDE:
>
> RYGB and I seem to be completely reading two iggrort moshe's differently,
> and I would ask your view, if you could.  The first is IM EH 1:57 and the
> second is EH 1:69.  I would welcome your thoughts.
>
> Michael J. Broyde

Let me respond to your request by changing the subject. I have really
enjoyed the learned discussion and highly intelligent analysis on this
topic. But your request has caused me to focus on something else.

My understanding of the discussion is that you are asserting based on a
diyuk that both the Tur and the Shulchan Aruch do not require hair covering
as a Torah requirement. That they both hold that it is not only a rabbinic
requirement but also one which is a function of the attitude of each
particular society. You readily agree that this understanding is clearly
against not only the Rambam but apparently the overwhelming consensus of
understanding of all those whom we consider our guides in halacha. All this
to produce an understanding of the Shulchan Aruch which will be melamed
zchus on those who don't follow the universally accepted halacha that hair
must be covered. You further acknowledge that this limud zechus is not even
a das yachid - an accepted halachic view - but is merely to say these people
are not sinners. Rabbi Henkin in his various writings concerning habituation
seems to have a similar purpose.

You now want to know whether I agree with your analysis of the Igros Moshe
that Reb Moshe would agree with your understanding of Das Moshe and Das
Yehudis that it supports your contention.

There is no question that Reb Moshe would prohibit uncovered hair. However
it is important to note that even on the lesser issue of whether he
permitted  a married women to uncover a small amount of hair there is
controversy. Rabbi Falk in his magnum opus on tznius - asserts a conclusion
which goes against the obvious meaning of the Igros itself but he brings
proof from Rav Dovid Feinstein and others. Can you make any clear
conclusions regarding your theses from the Igros? No. I think the words in
those specific tshuvos do support your reading but I strongly doubt based on
his other tshuvos that he would have said, "Your understanding of my
halachic position is correct". BTW the words of the tshuva also fit in with
Rabbi Bechhoffers understanding and thus the issue must be resolved by other
information which is not stated in the Igros.

Reb Moshe writes at the beginning of EH I 69 the following words, "Amongst
the questions that you have raised there are things which are not readily
open to public discussion because of the high degree of pritzus that exists
so that we find, unfortunately,  even frum Jews violating them. Look at the
Taz who cites the Maharshal that even in their time there was a problem of
arms not being covered properly. Therefore I will not respond concerning
those areas of pritzus which have penetrated the frum world but only
concerning the other things you asked."

My personal feeling is that a publicized limud zechus by a chashuv talmid
chachom becomes at least a das yachid which then makes it a lechatchila by
those searching for hetairim. This internet discussion group - despite the
obvious high level of learning manifest - is still a reshus harabbim. As is
evident from the recent misunderstanding of the Mahretz Chajes by someone
who clearly knows how to learn very well and more importantly is concerned
with truth - we can readily generalize to the many others who listen
uncritically and report the "chiddushim" to the world. "Rabbi Broyde said
the Tur and the Shulchan Aruch don't require any head covering and therefore
it is definitely mutar."  "Rabbi Broyde said that pritzus is dependent upon
what contemporary societies defines as pritzus and therefore what we do is
kosher." That is not the shitah of Reb Moshe nor any other posek including
yourself.

In the Yad Moshe (current edition page 280-281) I have a list of Reb Moshe's
many statements concerning publicizing psak halacha. "I don't want to put
this in writing", "I don't want to publicize my views" "I generally don't
respond in writing concerning certain issues of men and women", avoiding
publishing even in a rabbinic journal,"I have a great chidush in this manner
but I don't want to publicize it","don't reveal my views on this matter
because it will lead to people being lenient", and "avoid chidushim in
America because they run after leniencies" (O.C. II 108 page 298; YD I #13
page 30.


In sum, I respectfully suggest we change the topic.

Daniel Eidensohn

********************


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