Bar-Ilan University's Parashat Hashavua Study Center

Parashat Vaethanan 5762/ July 20, 2002

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
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Parashat Vaethanan 5762/ July 20, 2002

Arukh ha-Shulhan vs. Mishnah Berurah
Different Approaches Towards Non-Observant Practices

Yossi Ziv
Shapira Center

This week's reading contains the first paragraph of the Shema, the central portion of our prayers and the most consummate and pure expression of true reverence: accepting the kingship of heaven "with all your heart and all your soul."

In the Shulhan Arukh (Orah Hayyim 58-88) we find thirty-one paragraphs detailing the halakhah for reading the Shema, comprising hundreds of sub-sections that specify the requisite conditions for proper recitation of the Shema. The precise time, the cleanliness of the place, the intent of the reader, removal of anything that might mar full devotion, precise enunciation of each letter - these and other subjects are discussed at great length. In short, as the author says at the beginning of paragraph 61: "The recitation of Shema is to be said with devotion, awesome fear, trembling and trepidation."

Below we review a disagreement between halakhic authorities of a past generation regarding recitation of the Shema in the presence of a married woman who does not cover her hair, and show how this controversy can provide the basis for a new approach in the attitude of the Halakhah towards non-observant Jews in our times.

The Talmud (Babylonian, Berakhot 24a) states:

Rabbi Isaac said, "A handsbreadth [disclosed] on a woman is immodest." Why? If to prevent his staring at a woman, in that case Rav Sheshet said: "Why did Scripture count adornments worn on the outside with adornments worn concealed? To teach that whoever stares at even the little finger of a woman [with intent to enjoy] is like one who looks at her undressed! Rather, [R. Isaac's statement was made] regarding [looking at] his [own] wife and during recitation of Shema (Rashi: if a handsbreadth of her is revealed, he must not recite the Shema in her presence). Rav Hisda said, "A woman's calf is immodest, as it is said (Isaiah 47:2), 'bare your leg, wade through the rivers,' and 'Your nakedness shall be uncovered, and your shame shall be exposed.'" Shmuel said, "A woman's voice is immodest [erva], as it is said (Song 2:14), 'Let me hear your voice, for your voice is sweet [arev] and your face is comely.'" Rav Sheshet said, "A woman's hair is immodest, as it is said (Song, 4:1), 'Your hair is like a flock of goats.' (Rashi: We conclude from the fact that Scripture praises the beauty of her hair, that a woman's hair was given to be tempting.)"

It follows from the gemara that one should not recite the Shema in the presence of a handsbreadth of exposed flesh on a woman (in a place which women generally keep covered) such as the thigh, or in the presence of a woman singing, or a woman's hair. Although a man is not generally prohibited from seeing a handsbreadth of exposed flesh in the case of his own wife, or from seeing her thigh, or hearing her voice, the innovation here is that these things were forbidden even between a man and his wife when reciting the Shema, lest they distract him.
The Rishonim (Rashi, Rosh, Rashba, Mordechai, Shita Mekubetzet, Meiri, and Rambam) explained that this passage in the gemara referred to places that were usually covered and to a woman's singing which was forbidden to others to hear, but that seeing parts of a woman's body that were generally exposed or hearing her speaking voice were not forbidden even during recitation of the Shema. We cite Rashba's commentary on this gemara:

But her face, hands and feet, and the sound of her speaking which is not song, and hair that shows out of her plait and is not covered - these are no cause for concern because he is accustomed to them and is not distracted.

In the same spirit, the Shulhan Arukh (Orah Hayyim 75b) ruled:

One may not recite [shema] in the presence of women's hair which is generally covered. Rema: Even his own wife's hair. But [in the presence of] unmarried maidens, whose custom it is to go bareheaded, one is permitted. Rema: The same applies to women's hair that usually shows out of their plaits (Bet Yosef, citing Rashba), and certainly hair of gentile women, even where it is their practice to cover it (Hagahot Alfasi he-Hadashim).

In this context we must ask what is the ruling regarding parts of the body which by halakhah should be covered, such as the hair of a married woman, but which in modern society many women do not cover, going bareheaded. Should reciting the Shema be forbidden in the presence of such hair, which the halakhah says should be covered and which it considers immodest when exposed? Or should reciting the Shema in the presence of such hair be permitted, since women are accustomed to going with their hair uncovered and in any event it does not cause distraction?
The Mishnah Berurah[1] and the Arukh ha-Shulhan[2] took opposing stands on this question. The Mishnah Berurah (75.10) reads:

Where women generally cover their hair, and even when they cover it only in the marketplace but not in their own home or yard, nevertheless it is considered "immodest" by all opinions even at home; hence it is forbidden to recite [shema] in her presence if even some of her [hair] is revealed. Note further that even if it is customary for such a woman and her women friends in that place to go about bareheaded in the marketplace, as is the way of wanton women, it is forbidden. Just as it is forbidden in the case of a woman's calf being revealed, under any circumstances, likewise ... since rightfully women ought to cover their heads, and in fact this is a proscription from the Torah, as it is written, " '[he] shall bare the woman's head'—from here we learn that her hair was usually covered", and all Jewish women who adhere to the faith of Moses have taken care in this regard since the days of our ancestors. Since time immemorial to this very day it [uncovered hair] is considered immodest, and it is forbidden to recite [shema] in the presence of such, the only exception being unmarried maidens who are permitted to go about bareheaded; or such hair as shows out from their plaits, although this depends on the local custom, for if it is the custom among Jewish women in a given place to take care that not even a wisp of hair show out of its binding, then even that is considered immodest, and it is forbidden to recite [shema] in the presence of such; but if not, then it is permitted, since they are accustomed to it and there is no question of [being distracted in one's] thoughts.

According to the Mishnah Berurah, which is a commentary on the Shulkhan Arukh Orah Hayyim, the definition of "immodesty" in the presence of which a man may not recite the Shemah is an objective halakhic definition that does not take into consideration the practice of those who do otherwise. The Mishnah Berurah is willing to take into consideration local custom - e.g., "such hair as shows out from their plaits," - provided that it does not exceed the limits of the Halakhah, as written there: "although this depends on the local custom." But the practice of non-observant Jews, he states, cannot serve as a basis for halakhic definition. Therefore the hair of a married woman is considered "immodest," and one is not permitted to recite Shema in its presence, even if it is customary for married woman to go with their hair uncovered.

His Lithuanian contemporary, the author of Arukh ha-Shulhan, took quite a different stand, writing in his rulings regarding recitation of the Shema (sect. 75.7):

Now let us raise an outcry against the lack of restraint shown in our generation, where most sinfully for many years Jewish women have, contrary to Jewish law, been going about bareheaded, and all protests in this regard have been to no avail. Woe unto us that in our times this infection has spread so far that married women go about with their hair uncovered just as Jewish maidens. Nevertheless, regarding the law, it is our opinion that we may pray and recite benedictions in the presence of bareheaded women, since nowadays most women go about this way, and it has become as with parts of the body that are exposed, as Mordecai ben Hillel ha-Cohen wrote in the name of Ravyah in Sefer Mordechai: "All the things that we have mentioned as immodest apply precisely with respect to things that women do not usually expose, but a maiden who is accustomed to going with her hair showing is no cause for us to fear distraction in one's thought." Since in our surroundings also married women go about this way, in any event there is no cause for distraction.

This controversy reveals opposing approaches towards the practices of non-observant Jews. According to one approach, we ought to remain strictly within the confines of the halakhah, and all that is beyond its bounds has no bearing on the world of the halakhah, and surely should not affect halakhic definitions. The other approach, in contrast, holds that even though the world of non-observant Jews lies beyond the strict confines of the halakhah, nevertheless it is not severed from the halakhah but even has power to affect it.

We must emphasize that discussion of the fundamental question is confined strictly to those halakhic rulings that by definition depend on local custom. Surely no one would suggest that in a locality where everyone eats pork or kindles fire on the Sabbath we consider sanctioning such actions halakhically on the grounds that they are the "local custom." There is room for discussion only regarding those rules of halakhah where local practice is an operative principle in the halakhic definition itself, such as working on the eve of Passover or of the Ninth of Ab, regarding which practice the Mishnah (Pesahim 4.1,5) states explicitly, "Where it is customary to work, ... one may work and where it is customary to abstain from working, one may not work." Likewise, regarding the issue at hand - the way one should relate to a married woman's hair or to hair that shows out beyond a woman's head-covering. In these matters the halakhah explicitly gives weight to local practice. It is here that we encounter a difference of opinion between the Mishnah Berurah and the Arukh ha-Shulhan, whether or not the halakhah ought to take into account the practices of non-observant Jews.

Some people have ascribed the different attitudes toward non-observant Jews taken by the two posekim cited above to the different occupations of these Halakhic authorities. Rabbi Israel Meir ha-Cohen (known as the Hafetz Hayyim), author of the Mishnah Berurah, never accepted a rabbinical position in any locality. He earned his livelihood from petty commerce and throughout his life was closely connected with the world of the yeshivot, both writing his works and founding the Radin Yeshivah. Therefore, he tended to survey the views of various posekim with an inclination towards the stricter interpretations. In contrast, the author of Arukh ha-Shulhan, Rabbi Jehiel Michal Epstein, served as Rabbi of Novharodok for about forty years, where his daily contact with the Jewish bourgeoisie influenced his approach to halakhic ruling, which was always very realistic and generally lenient in comparison to the rulings of the Mishnah Berurah.[3]

In my opinion the ruling of Arukh ha-Shulhan can be seen as providing the foundation for a fresh approach by the Halakhah to the secular Jewish population of our times: no longer are they viewed as "an infant taken captive by gentiles," or as "an innocent person misled in his views"[4] - a patronizing approach generally unacceptable to most of the secular community.[5] Rather, a more congenial approach is taken, absolving the religious community of the obligation to reprove others in such situations where reproof would not be effective, and suiting the words of the Talmud (Betzah 30a): "Let those Jews be; for it is preferable that they be unwitting sinners rather than deliberate violators of the Law."[6] Moreover, the fact that Arukh ha-Shulhan is willing to permit recitation of the Shema in the presence of a bareheaded married woman indicates willingness to view the practices of non-observant Jews as the "local practice." This far-reaching ruling could provide the basis for new halakhic definitions in various areas regarding the attitude of the Halakhah towards the contemporary secular Jewish community.[7]

[1] Rabbi Israel Meir ha-Cohen of Radin, 1838-1839 (Byelorussia), 1933 (Radin, Lithuania).
[2] Rabbi Jehiel Michal ben Aharon ha-Levi Epstein, 1835 -1905 (Novharodok, Lithuania).
[3] I heard things in a similar vein from my friend, Rabbi Dr. Hayyim Burgansky, and from my neighbor, Mrs. Meirav Beramah, who wrote her dissertation on the halakhic rulings of the Mishnah Berurah. Countless examples in differences of approach between the two authorities can be cited. For example, in the rules regarding the Shabbat, the Mishnah Berurah forbids running or walking rapidly over moist grass on the Sabbath for fear that they be torn off (336.3), but Arukh ha-Shulhan is more lenient; likewise, regarding clapping hands on the Sabbath, the Mishnah Berurah tends to take a strict stand (par. 339.3) and the Arukh ha-Shulhan, a more lenient approach.
[4] Maimonides, Mamrim 3.3.
[5] Cf., for example, Yizhar Smilansky, Oz Lihyot Hiloni, and Amos Oz, Be-or ha-Tekhelet ha-Azah, Jerusalem, Yad va-Shem 1998.
[6] Regarding the balance between reproving the secular community in our day, or letting them be, see Tehumin I, p. 311; 2, p. 272, 11, p. 58; 14, p. 238; also see my own article, "Mutav she-yihyu shogegin," Orot Etzion 28, 1998, pp. 83-91.
[7] For an example of a ruling in this spirit, see Rabbi Ovadiah Yosef, Yabia Omer, Part 6, Yoreh De'ah 14, where he concludes that since slacks have become common dress among women in many places, this is no longer to be viewed as the proscription against women wearing men's clothing, since in any event they are not necessarily particular to men.