Tuesday, October 16, 2007

Wigs Are Permitted - part II

Part 1 available here:

Wigs Are Permitted

Joshua Waxman


A wig is a valid way for a Jewish woman to fulfill her halachic obligation to cover her hair. As Rabbi Yochanan says in Talmud Yerushalmi, Ketubot 42b, היוצאה בקפלטין שלה אין בה משום ראשה פרוע, “if a woman goes out with her wig, there is not in it any issue of uncovered head.” The word קפלטין means wig, and is the Latin word capillitium, or wig, from the Latin word capillus, or hair. The novelty of Rabbi Yochanan’s statement would appear to be that a wig, after all, is attractive, and looks like the woman’s hair, so how could she be said to be going out with her head covered? Yet Rabbi Yochanan declares this to be a permissible form of head covering.

There may or may not be restrictions on this allowance to wear a wig, in terms of location (public vs. private) in which the wig is acceptable and whether it is only permitted on a Biblical level or also on the level of dat yehudit. Yet, in the end, I will demonstrate that the wig is permitted nowadays in all places and on all levels. I will also show that there is no Biblical component at all to a woman’s uncovered head, even if she went out in public with no head covering whatsoever.

This is important to show for two reasons. Firstly, in many communities, the wig is a standard method of head covering for women. Secondly, in recent times, some prominent rabbis such as Rabbi Shmuel Auerbach, Rabbi Shalom Elyashiv, and Rabbi Nissim Karelitz have declared that even if one says that wigs are permitted, modern wigs are Biblically forbidden since they are attractive and look like hair[1]. Therefore, I will attempt to show that wigs are indeed acceptable and, separately, that indeed there is never a Biblical component of uncovered hair.

Aside from anything I put forth, it is appropriate to note that Rav Moshe Feinstein maintained that wigs which look like hair are permitted. In Igrot Moshe, Even HaEzer II, siman 12, he addresses the issue of whether there is a problem of mar`it ‘ayin for wigs which look like real hair such that even men cannot tell, and even women cannot tell that it is not the woman’s real hair. He concludes that there is no problem of mar`it ‘ayin and so it is permitted. We see clearly that the only issue he considered (and dismissed) in this respect was mar`it ‘ayin and not the Biblical prohibition of roshah parua’.

I take two separate approaches to permitting wigs. In the first approach, I will show that according to Rabbi Yochanan, a wig is a valid covering everywhere on a Biblical level, but is indeed a problem in public on the level of dat yehudit. Therefore, any issues of prohibition that modern women are violating is only one of dat yehudit and not in fact Biblical. Furthermore, since in these communities wigs are a primary method of head covering for married women, this defines a new dat yehudit, or Jewish custom of tzniut, for these communities. Therefore, they are not in violation even on the level of dat yehudit.

In the second approach, I critically analyze the relevant gemaras in Ketubot to demonstrate that in fact, a woman’s entirely uncovered head is never a Biblical violation. Rather, the only problem is ever on the level of dat yehudit. When Rabbi Yochanan states that a wig is permitted, he states this on the level of dat yehudit, but a Biblical level was never under discussion. Furthermore, where Rabbi Zera discusses locations in which there are violations for uncovered hair, this is not for one wearing a partial head-covering such as a wig, but rather is for one whose hair is entirely uncovered.

From either of these approaches, we may conclude that a wig is a perfectly valid hair covering. From the second approach, there are even more drastic halachic conclusions, such as permitting entirely uncovered hair in various locations, even where unrelated men are present, and perhaps permitting entirely uncovered hair in the communities where this has become the norm.

The First Approach

In Bavli Ketubot 72a, a Mishna informs us that a woman “leaving” with uncovered hair is a violation of dat yehudit:

ואלו יוצאות שלא בכתובה העוברת על דת משה ויהודית

ואיזו היא דת משה מאכילתו שאינו מעושר ומשמשתו נדה ולא קוצה לה חלה ונודרת ואינה מקיימת

ואיזוהי דת יהודית יוצאה וראשה פרוע וטווה בשוק ומדברת עם כל אדם אבא שאול אומר אף המקללת יולדיו בפניו רבי טרפון אומר אף הקולנית ואיזוהי קולנית לכשהיא מדברת בתוך ביתה ושכיניה שומעין קולה

Thus, going out with her hair uncovered is listed as a violation of dat yehudit but not as a violation of dat Moshe.

However, the gemara in Bavli Ketubot 72a-b redefines this categorization:

:איזוהי דת יהודית יוצאה וראשה פרוע

ראשה פרוע דאורייתא היא דכתיב (במדבר ה) ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש

דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור

אמר רבי אסי אמר ר' יוחנן קלתה אין בה משום פרוע ראש

הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה

אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

Thus, the gemara challenges the Mishna’s categorization of uncovered hair as being purely dat yehudit, since the brayta from the academy of Rabbi Yishmael appears to categorize this as Biblical (and presumably thus dat Moshe). The gemara utilizes a distinction used a bit later by Rabbi Yochanan, in which a woman goes out with a kalta. With this kalta, which is some partially valid hair covering, there is no Biblical violation, but only a dat yehudit violation, and this is the case of the Mishna. Meanwhile, the brayta which speaks of Biblical violation, and so refers to a woman who goes out with her hair entirely uncovered.

Then, Rabbi Assi cited Rabbi Yochanan that there is no violation or uncovered hair with a kalta. Rabbi Zera carefully analyzes this statement to determine about what location Rabbi Yochanan was speaking. He could not have permitted it in the most public place, a shuk, or marketplace, because the gemara had already stated that there were violations of dat yehudit with a kalta, and that would presumably be in the most public place. On the other hand, he could not be stating that there was a requirement to wear a kalta in the courtyard, for that is to restrictive and every Jewish man would have to, or would be able to, divorce his wife for this violation of completely uncovering her head in the courtyard. Abaye, or perhaps Rav Kahana, resolves this by stating that the place in which the kalta is sufficient head covering is the alleyway, on her way from one courtyard to another.

Typically in Jewish law, a chatzer, or courtyard is one which one or more houses (and thus families) share. Thus multiple ownership of the courtyard creates issues in terms of carrying therein on Shabbat, unless the various owners do such things as create an eruv chatzerot, to create a joint ownership. Thus, it would seem that the woman may go with her head entirely uncovered even in the presence of others, and even in the presence of unrelated men. This would then seem to be the case certainly within her own home as well. However, Tosafot Rid applies a restriction found in Yerushalmi that this is only a courtyard in which the public does not intrude. Depending upon how one defines this, we might restrict even a courtyard.

A kalta is defined by Rashi (in Ketubot 72b) as a basket-hat, with a receptacle below to put one’s head and a receptacle above to put flax. An old text of Rashi offers an explanation for this, namely that it is like a straw hat and hair is visible between the nesarim.

The Yerushalmi is roughly parallel, but there are important differences. In Yerushalmi Ketubot 42b:

וראשה פרוע

לחצר אמרו ק"ו למבוי
רבי חייה בשם רבי יוחנן היוצאה בקפלטין שלה אין בה משום ראשה פרוע

הדא דתימא לחצר אבל למבוי יש בה משום יוצאה וראשה פרוע

יש חצר שהוא כמבוי ויש מבוי שהוא כחצר חצר שהרבים בוקעין בתוכה הרי הוא כמבוי ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר

Thus, the Yerushalmi begins by discussing the Mishna which stated that a woman who “leaves” with her head uncovered violates dat yehudit. The gemara clarifies that they spoke of leaving to the courtyard, and certainly to the more public alleyway.

Rabbi Chiyya cites Rabbi Yochanan, in a statement roughly parallel to Rabbi Yochanan’s statement cited by Rabbi Assi in Bavli Ketubot. Here, he says that a kapiltin has no violation in it of her uncovered head. The gemara clarifies that this allowance is for going out with a kapiltin it to a courtyard, but not to an alleyway. The gemara further clarifies that courtyard and alleyway are somewhat fuzzy terms, for the real issue is whether or not the public intrudes into the courtyard or alleyway.

There is another slight difference between the Bavli and Yerushalmi here, for in the Bavli a kalta was permitted even according to dat yehudit in an alleyway, from one courtyard to another, while according to the Yerushalmi, a kapiltin is only permitted in the courtyard but not in the alleyway.

A kapiltin is, in all likelihood, a wig. It corresponds to the Latin word capillitium, which means wig, and which from capillus, meaning hair. Thus, Rabbi Yochanan’s statement was about a wig.

What, then, is the status of the wig? Where acceptable, it seems acceptable even according to dat yehudit. Where it is not acceptable, is it unacceptable only according to dat yehudit or even Biblically?

I would venture that the violation is only one of dat yehudit, for a number of reasons. First, the Yerushalmi never mentions any possibility of Biblical violation. This concept was only introduced in the Bavli, in a brayta from the academy of Rabbi Yishmael. The Bavli’s harmonization allowed for certain situations to be Biblical violations and other situations to be violations of dat yehudit. In contrast, the Yerushalmi only has the Mishna which lists the violation as one of dat yehudit. Rabbi Yochanan would then be saying that a kapiltin is fine in certain contexts on the level of dat yehudit, and in other contexts, a problem on the level of dat yehudit. Even discussing a Biblical violation betrays a Bavli influence.

Secondly, Rabbi Yochanan’s statement about the kapiltin in Yerushalmi is roughly parallel to his statement in the Bavli about the kalta. It comes from the same person, uses almost the same language, and receives approximately the same constraints. Thus, it serves roughly the same function. In the case of the kalta, in a location where it was not acceptable, it was still permitted on the Biblical level. In the case of the kapiltin, we should say the same – that it is valid on the Biblical level everywhere, but on the level of dat yehudit, it is problematic in an alleyway. We could posit that in an alleyway, absent the dat yehudit acceptability, it also is Biblically forbidden, and that the Biblical allowance was just for a kalta, but it seems much more logical that there is no Biblical component, given that the gemara never mentions a Biblical component and that it occupies the same role as the kalta did in Bavli.

Thirdly, I would posit that the kalta in Bavli is actually the kapiltin in Yerushalmi. We have two statements from the same individual, Rabbi Yochanan, saying essentially the same thing, that object X is a valid form of head covering, and the statement is subject to roughly the same constraints of venue. Furthermore, kalta poses a slight difficulty. In other contexts, in means “basket,” yet here it means a basket which is also a hat. Even so, this hat definition is a bit surprising, while a wig would be entirely expected in this context. Furthermore, kalta and kapiltin even sound similar.

I would therefore suggest that Rabbi Yochanan’s statement was originally about the קפלטין even in Bavli, just as we have the Yerushalmi’s statement that רבי חייה בשם רבי יוחנן היוצאה בקפלטין שלה אין בה משום ראשה פרוע. However, through scribal error it became קלתה. The word קפלטין is Latin, with a Latin ending, but a scribe would not necessarily know this, and he might interpret the ין as the feminine plural. This would be at odds with the pronoun בה later in the same sentence. Therefore, he would fix קפלטין to the feminine singular, yielding קפלטה.

Indeed, to achieve קפלטה, we do not even need to assert that there was scribal error. Rather, קפלטה is entirely acceptable as “wig.” We see it in this form, having lost the ין, elsewhere in Yerushalmi. In Yerushalmi Shabbat 33b:

רב הונא הורי לאיתתיה דריש גלותא מיתן ליברה דדהבא על קפיליטה.

רבי יוחנן הורי לאילין דבית בון תמינא טלייה דמרגליתא על פרגזתא.

א"ר אילא כל המחובר לכסות הרי הוא ככסות

Rav Huna ruled that the wife of the Exilarch could place an ornamental pair of gold scales upon her wig, and go out on Shabbat. Rabbi Yochanan ruled for those of the house of Bon from the location Temina to place something with pearls on her pargazta. Rabbi Illa said that anything attaches to a garment is like the garment[2].

Thus, we only need to transform קפלטה to קלתה. If we assume they are indeed the same word, then under the principle of lectio difficilior, it is much easier for a scribe to accidentally omit the פ than to add such a letter, so it is more likely that a scribe accidentally omitted the פ to create קלטה. Then, it is a simple “correction” of ת for ט to obtain the common word for basket, קלתה.

If so, a wig is the subject of the Bavli as well, and so a wig certainly has the same status that we have previously assigned to a kalta. Therefore, any violation – such as wearing a wig to the alleyway or the marketplace –would be one of dat yehudit.

Perhaps, as these modern day rabbis contend, any ancient permission to use a wig is for a wig that does not look like hair, but otherwise it is a Biblical violation rather than a violation of dat yehudit? I would answer that Rabbi Yochanan’s statement is intended as a novelty, and surely the novelty is exactly what is troubling these modern rabbis, that it is attractive and looks like real hair. Yet, Rabbi Yochanan says that there is no violation of an uncovered head, and the gemara seems to say (if we equate it with kalta) that there is no Biblical violation of an uncovered head. Furthermore, I see no need to assume that the ancient wigs did not sometimes look like real hair, and that ancient wigs were not attractive. Therefore, I would label any violation to be only on the level of dat yehudit.

What exactly is dat yehudit? The Encyclopedia Talmudit definition is:

דת יהודית היא מנהג הצניעות[3] שנהגו בנות ישראל[4] אף על פי שאינו כתוב בתורה[5] ואינו אסור מן התורה[6], אלא מנהגים נהוגים באומה מצד צניעות, להיות בנות ישראל יתרות במידת הצניעות על כל שאר נשים[7], והעוברת עליהם עושה דברים של פריצות, ויוצאים מהם דרכים ושבילים לזנות[8].

This is an aggregate definition, from culled from multiple sources, but the general idea is that it is an issue of tniut which is not Biblical. That is, dat yehudit is a custom of modesty which the daughters of Israel practice even though it is not written in the Torah and is not Biblically forbidden, but are rather customs practiced in the nation for reasons of modesty, such that daughters of Israel are greater in the measure of modesty than the other women, and those who violate them are performing matters of peritzut, and from them go in ways and paths to illicit relations.

Indeed, the examples in the Mishna of dat yehudit seem to reinforce this idea. Going out with uncovered hair, weaving in the marketplace (those exposing certain portions of the arm) and talking with all the men. It seems that the woman is being described as flirtatious.

A violation of dat yehudit is still problematic for the many communities in which married women wear only a wig as a head covering. However, such a violation is surely not the Biblical one stated by these present-day prominent rabbis, and perhaps we could allow custom to overcome the dat yehudit.

Alternatively, we might make a bolder claim: Dat yehudit is, by definition, the tzniut customs of married Jewish women in a particular community, and violating that is going against those communal norms of tzniut. In a Muslim country, the dat yehudit might be more stringent. Since, in the communities under discussion, for many years, married women cover their hair with a wig, and are even identified as married women via this head covering, this is the dat yehudit of their community, even if it was not the dat yehudit at the time and place of the gemara.

The Second Approach

Thus far, we have admitted that in certain cases, there is a Biblical law of head-covering. Now we will analyze the Bavli and Yerushalmi once more, in order to demonstrate that there is no Biblical aspect of head-covering, that Rabbi Yochanan permits the kalta and kapiltin everywhere, even on the level of dat yehudit, and that an entirely uncovered head is permitted in a courtyard but not in an alleyway.

The Mishna did not mention any Biblical component, calling it only a violation of dat yehudit. The gemara, or rather the setama digmara, introduces the Biblical component by citing the brayta from the academy of Rabbi Yishmael. On Ketubot 72a:

:איזוהי דת יהודית יוצאה וראשה פרוע

ראשה פרוע דאורייתא היא דכתיב (במדבר ה) ופרע את ראש האשה ותנא דבי רבי ישמעאל אזהרה לבנות ישראל שלא יצאו בפרוע ראש

דאורייתא קלתה שפיר דמי דת יהודית אפילו קלתה נמי אסור

Thus the gemara objects to the classification of head-covering as dat yehudit, citing the brayta, and offers a harmonization in which certain cases are violations of Biblical law and others of dat yehudit.

We may assume that this section of the gemara is stamaic on the basis of several points. Firstly, it is anonymous and in Aramaic. Secondly, it poses a contradiction of sources and offers a harmonization, and such harmonizations are standard stamaic fare. Thirdly, while anonymous, the point of distinction used for the harmonization is drawn from a named Amora, Rabbi Yochanan. Indeed, the seizing of the kalta for this earlier Biblical/dat yehudit distinction later obstructs our taking of Rabbi Yochanan’s statement at face value.

(Note: According to several girsaot found in Rishonim, this statement is attributed to Rav Yehuda citing Shmuel, just as several proximate statements are attributed to him. If this is indeed so, it would still appear to be a dispute between Shmuel and Rabbi Yochanan, in which case we would rule like Rabbi Yochanan.) Besides for this evidence that this a later, post-Talmudic insertion, there are other difficulties to consider. The Mishna classified יוצאה וראשה פרוע as dat yehudit. The simplest meaning of ראשה פרוע is that her head is uncovered, not that it is covered by a Biblically valid covering but one that is invalid on a dat yehudit level, namely a basket-hat in the market. Furthermore, if there is indeed a simpler violation on the Biblical level, why did the Mishna list this as a violation of dat yehudit and omit it from the list of violations of dat Moshe?

Furthermore, according to the conclusion of our gemara, a kalta is a valid covering in the courtyard and in the alleyway, and is only a violation of dat yehudit in the marketplace. Yet, the Mishna stated יוצאה וראשה פרוע וטווה בשוק, with the implication that it is only spinning that happens in the marketplace, while “going out” is to some less public location. Indeed, the Yerushalmi makes exactly this deduction in the very beginning of the sugya, stating וראשה פרוע לחצר אמרו ק"ו למבוי, that the “going out” with uncovered head in the Mishna, which was a violation of dat yehudit, is “going out” to the courtyard, and certainly it would be a violation to go out to the alleyway. Now, the Yerushalmi can, and often does, contradict the Bavli, but it is in fact a fair deduction.

Furthermore, the simplest meaning of Rabbi Yochanan’s statement is that a kalta is a valid head-covering in general, everywhere. However, once we have this anonymous statement, which seized the kalta for the point of distinction, Rabbi Yochanan can no longer be speaking of the general case, but must be stating that this head-covering is valid in an extremely narrow context, which will seldom occur – from one courtyard to another by way of an alleyway.

Furthermore, when Rabbi Yochanan states that קלתה אין בה משום פרוע ראש, why not say that he meant on the Biblical level only, like in the anonymous statement above?

Finally, we see from the Yerushalmi that no Biblical aspect of head-covering is mentioned, and so no harmonization is needed. The entire context of the Yerushalmi is one in which lacking head-covering is a violation of dat yehudit.

We can say the same in our sugya in Bavli. If a brayta contradicts the Mishna, then we have a Tannaitic dispute, and we rule in favor of our Mishna. Therefore, head-covering is only an issue of dat yehudit, and never a Biblical issue. There is no need for harmonization. The Mishna was talking about leaving some location for another one with head entirely uncovered, and this is an issue of dat yehudit.

The gemara (Bavli Ketubot 72b) continues:

אמר רבי אסי אמר ר' יוחנן קלתה אין בה משום פרוע ראש

Rabbi Yochanan meant this in general, in all locations. A kalta is a valid head-covering. However, the gemara, or Rabbi Zera, appears to restrict this statement:

אמר רבי אסי אמר ר' יוחנן קלתה אין בה משום פרוע ראש

הוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה

אמר אביי ואיתימא רב כהנא מחצר לחצר ודרך מבוי

Rabbi Zera asks where Rabbi Yochanan’s statement can take place. It cannot be this marketplace, for we have already determined that this is fine Biblically and prohibited according to dat yehudit, yet Rabbi Yochanan apparently permits entirely in some location. We cannot say that he requires a kalta in a courtyard, for that would be too restrictive. Abaye, or perhaps Rav Kahan, resolves that Rabbi Yochanan was dealing with wearing the kalta in a very narrow, restrictive case – going from one courtyard to another by way of an alleyway.

Besides the difficulty in taking Rabbi Yochanan’s statement away from its plain meaning and establishing it in an extremely narrow context, there is another difficulty. A stamaic statement is post-Talmudic, and so an Amora such as Rabbi Zera should be unaware of it. Yet Rabbi Zera is aware of the statement, in order to reject the context of the marketplace. This would be a good reason to discard the prior assumption that that earlier segment of the sugya was stamaic. Yet, there were quite a number of valid reasons to state that it is stamaic and that it was not originally in the gemara.
Indeed, stamaic statements do not always stand alone. Sometimes, they modify and clarify named Amoraic statements. I believe that this statement of Rabbi Zera is one such case. The gemara readsהוי בה רבי זירא היכא אילימא בשוק דת יהודית היא ואלא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה, which is a relatively long statement, but the first portion of the statement, up to ואלא, is more heavily Aramaic, while the latter portion of the statement is entirely Hebrew.

Therefore, I would posit that the statement of Rabbi Zera originally was something akin to הוי בה רבי זירא בחצר אם כן לא הנחת בת לאברהם אבינו שיושבת תחת בעלה. Furthermore, his statement was not modifying Rabbi Yochanan’s statement about the kalta. Rather, it was modifying the statement in the Mishna that ואיזוהי דת יהודית יוצאה וראשה פרוע וטווה בשוק. Wherever this woman went with her head uncovered, it was presumably not the marketplace, for the marketplace is explicitly mentioned in the phrase of וטווה בשוק. Yet, she left someplace, for the Mishna says יוצאה. If she left her house for the courtyard, then it is forbidden to go into the courtyard with uncovered head. But every Jewish woman does so, objects Rabbi Zera, and soלא הנחת בת לאברהם אבינו שיושבת תחת בעלה! Abaye, or perhaps Rav Kahana, resolves this problem. When the Mishna says יוצאה וראשה פרוע, it meant that she left from one courtyard on her way to another courtyard, by way of an alleyway.

Rabbi Zera’s statement in Bavli is now parallel to the introductory statement in Yerushalmi. That Yerushalmi began, in Yerushalmi Ketubot 42b:

וראשה פרוע -- לחצר אמרו ק"ו למבוי

That is, the Mishna stated that she violates dat yehudit if she is יוצאה וראשה פרוע. But does this mean entering the marketplace? It would seem not since the next statement in the Mishna was וטווה בשוק. Rather, it means that she leaves her house to enter the courtyard. Thus, they said לחצר, and all the more so למבוי. This is parallel to Rabbi Zera’s statement, but more stringent, since they consider it a violation even in the courtyard.

Let us now turn to consider the Yerushalmi Ketubot in its entirety. The gemara there read:

וראשה פרוע

לחצר אמרו ק"ו למבוי
רבי חייה בשם רבי יוחנן היוצאה בקפלטין שלה אין בה משום ראשה פרוע

הדא דתימא לחצר אבל למבוי יש בה משום יוצאה וראשה פרוע

יש חצר שהוא כמבוי ויש מבוי שהוא כחצר חצר שהרבים בוקעין בתוכה הרי הוא כמבוי ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר

We had just considered the first statement – לחצר אמרו ק"ו למבוי –and found it roughly parallel to the original statement of Rabbi Zera. The next statement is that of Rabbi Yochanan, who states that with a kapiltin, there is no violation of uncovered head. Since there is no mention of Biblical law in the Yerushalmi, we may assume that he refers to the matter of dat yehudit, as mentioned by the Mishna.

Then, there is an anonymous constraint of Rabbi Yochanan’s statement – הדא דתימא לחצר אבל למבוי יש בה משום יוצאה וראשה פרוע. The implication of the setama of the Yerushalmi is that a kapiltin is only valid in a courtyard but not in an alleyway, and certainly not in a marketplace! I would suggest that this constraint is influenced by the constraint that developed in the Bavli. The reason for the difference from the Bavli – the Bavli, after all, permits the kalta in the alleyway – is that the introductory statement in the Yerushalmi was taken as the template for allowed and required behavior. That statement was לחצר אמרו ק"ו למבוי. As stated above, this was intended to refer to when, in the Mishna, a woman violated with her head entirely uncovered. Thus, if a woman would violate with uncovered head in a courtyard, then the minimal domain for Rabbi Yochanan’s statement would be that courtyard.

Finally, we have an anonymous clarification of the role of courtyard and alleyway. The Yerushalmi states that

יש חצר שהוא כמבוי ויש מבוי שהוא כחצר חצר שהרבים בוקעין בתוכה הרי הוא כמבוי ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר

This elaboration is actually a transfer from a more detailed sugya in the beginning of Yerushalmi Pesachim. In the first Mishna of Pesachim, we read:

ובמה אמרו שתי שורות במרתף מקום שמכניסין בו חמץ בית שמאי אומרים שתי שורות על פני כל המרתף ובית הלל אומרים שתי שורות החיצונות שהן העליונות

In Yerushalmi Pesachim 2b we read:

מרתף של יין צריכה בדיקה. מרתף של שמן אינו צריך בדיקה. מה בין יין ומה בין שמן. יין אין לו קבע שמן יש לו קבע. אוצר בין של יין בין של שמן אינו צריך בדיקה. אי זהו מרתף כל שנתון עם הלחם בחצר. יש מרתף שהוא כאוצר ואוצר שהוא כמרתף. מרתף שהוא בוש לוכל בתוכו הרי הוא כאוצר. ואוצר שאינו בוש לוכל בתוכו הרי הוא כמרתף. יש חצר שהוא כמבוי ומבוי שהוא כחצר. חצר שהרבים בוקעין בתוכה הרי הוא כמבוי. ומבוי שאין הרבים בוקעין בתוכו הרי הוא כחצר. וחש לומר שמא הבהמים מכניסין לתוכו חמץ. אין דרך הבהמים להיות מכניסין לשם חמץ אלא מיני מתיקה. שהן בודקין היין היפה

The idea is that someone will eat in his own courtyard, but will be embarrassed to do so in an alleyway where there are many people. Therefore, a courtyard into which the public intrudes is like an alleyway, such that it does not require inspection for chametz, while an alleyway into which the public does not intrude is like a courtyard, since he might eat in there, and therefore requires inspection for chametz.

Based on the ensuing discussion about the animal drivers in the courtyard, this gemara in Pesachim would seem to be an original source for the distinction about whether or not the public intrudes. The parallel distinction in Yerushalmi Ketubot, while it makes sense in terms of the public vs. private conduct expected there, could well be a transfer from this gemara in Pesachim. Therefore, the fact that it is present in Ketubot is not a proof that this courtyard/alleyway distinction was originally present in the explanation of the words of Rabbi Yochanan.

From this reanalysis of the Bavli and Yerushalmi, we may make a number of conclusions. Firstly, there is no Biblical component to the requirement for a woman to cover her hair. Secondly, Rabbi Yochanan’s statement permitting a kalta and a kapiltin is always on the level of dat yehudit, and he permits in every location. Thirdly, according to Bavli, a woman may go with her hair entirely uncovered into a courtyard, however we define that, but not into an alleyway, or else she will violate dat yehudit.

In terms of the new statement that modern wigs are Biblical violations, because they are attractive and because they look like the woman’s hair, we have the following response: Firstly, the prohibition will never be Biblical, but could only be a violation of dat yehudit at the maximum. Secondly, Rabbi Yochanan permitted a kapiltin, or wig, in all locations, so there is not even a violation of dat yehudit. Thirdly, there is no reason to assume that the wigs in the day of Rabbi Yochanan were not attractive and did not look like hair. Fourthly, the fact that Rabbi Yochanan has to make a statement shows that it is a novelty, and a very plausible reason for the novelty was that the wig was attractive and looked like hair, and yet he permitted it. Finally, even if these wigs are different from the Talmudic ones, since the violation is on the level of dat yehudit, since the standard for married Jewish women in these communities is to use such a wig to cover their hair, this defines a new dat yehudit, which each married Jewish woman fulfills.


Thus, we have two methods of permitting wigs. In the first approach, we admit that wigs are forbidden on the level of dat yehudit, but assert that a community, through its religious practice, may create a new dat yehudit. In the second approach, we argue that there is no Biblical component to head-covering, and assert that Rabbi Yochanan permits wigs in all locations, on the level of dat yehudit. Therefore, we would not agree that wearing modern wigs are a violation of Biblical law.

[1] See http://www.ynetnews.com/articles/0,7340,L-3258868,00.html

“Modern wigs are forbidden according to the Torah since they are just as much a breach of the law as hair, if not more,” according to the announcement. “Unfortunately, such breaches are rampant among the ultra-Orthodox, and everyone has an obligation to put out the burning flame and to make haste to remove an obstacle, to eradicate this terrible problem of wigs… Every woman well knows in her heart the bitter truth, and how wigs look today, and she is going to be judged for this, and no excuses will avail in the next world.

"Therefore, every woman should make haste to join the thousands of righteous women who have already removed all kinds of wigs and pieces of wig that harm the souls of pure and holy young men and yeshiva students of the Jewish people.”

According to the announcement, while there were a number of authorities in Jewish law who permitted the wearing of wigs for married women, they were referring to the older type of wig. The newer wigs, which look just like real hair, are clearly “forbidden according to the Torah.”

Therefore, “in order to encourage students of Torah to study and to teach the real truth… it has been decided to offer a prize of USD 18,000 to any observant Jew who can show that modern wigs are permitted, and can disprove the aforementioned. And since there are rabbis who still do not know about all this, and who still think that there is permission that can be relied upon, and in order to encourage the students to discuss this with their rabbis, it has been declared that anyone who succeeds in gleaning information from a rabbi who can disprove the aforementioned - as well as the rabbis themselves - will receive a double prize of USD 36,000.

Furthermore, the Institute’s instructions for those who have gone back to wearing an acceptable head covering are to cover the head with a “modest kerchief, and not, Heaven forbid, all kinds of newfangled modern kerchiefs and head coverings that are liable to attract attention because of the evil inclination and to cause the public to sin with accessories that attract the eye.”

[2] One simple reading of this gemara in Shabbat would be that this is being permitted even to the public domain. Perhaps this is allowed because only important women wear such ornaments, and they will not come to remove them to show to their friends. It would seem that the novelty here is the ornament of golden scales, but of course the wig would be permitted. This would seem to permit wigs for hair covering in a much greater domain than seen previously. This would appear to contradict a Mishna (in Bavli Shabbat 64b and Yerushalmi Shabbat 37a) which states that a peah nachrit (usually understood as a wig) is permitted only to the courtyard on Shabbat. It would also seem to contradict our Yerushalmi in Ketubot which would only allow it in a courtyard.

Several resolutions are possible. Perhaps we would not worry about important women removing it, so there is no issue in terms of carrying on Shabbat, and in terms of dat yehudit, we would have to reinterpret the Yerushalmi in Ketubot. Perhaps peah nachrit in the Mishna should not be translated as wig. Perhaps a קפיליטה is not the same as a קפלטין. Perhaps the intent of Rav Huna’s ruling was only to a courtyard – though according to the Yerushalmi Ketubot’s specification, it would have to be to a courtyard into which the public does not intrude. Perhaps since there is this additional ornament on top, we would understand this as fulfilling the Rambam’s requirement for a top and bottom covering, such that she would indeed be able to go to the public domain.

[3] רמב"ם אישות פכ"ד הי"ב; טוש"ע אהע"ז קטו ד

[4] רש"י כתובות עב א ד"ה דת יהודית; שו"ת הרשב"א ח"ה סי' רמו; רמב"ם וטוש"ע שם.

[5] רש"י כתובות שם

[6] שמ"ק כתובות שם בשם רש"י במהדו"ק

[7] מאירי כתובות עמ' 309 .

[8] מאירי שם עמ' 311.


Rabbi Joshua Maroof said...

Unrelated to this particular post...I just wanted to say that I have been particularly enjoying your blog of late. The posts have been outstanding.

I am curious as to your take on the Bnei Elohim and Benot Adam at the end of Beresheet...I haven't noticed any references to it in your other Beresheet pieces.

joshwaxman said...


perhaps i'll do something about it next year.

my approach (at least at the moment) to Bnei Elohim is what you might expect -- note the connections brought down in midrash to Refaim, Nefilim, giants. That it might mean angels. That this might very well be a correct assessment on a peshat level. Also the explanation of it meaning prominent people. And of course the pasuk in Devarim "lemispar benei yisrael" which has in certain non-masoretic variants, "lemispar Benei Elohim," with the plausible interpretation of these being angels of the particular nations.

But I will try to remember to do such a post, next year.

Kol Tuv,

Rabbi Joshua Maroof said...

I have difficulty with the angelic interpretation for a few reasons:

1 - Obvious theological strangeness

2 - Punishment being exclusively meted out to humans, not angels.

3 - No mention of such angel-man relations anywhere else in Tanach

joshwaxman said...

on points 1 and 3, I agree with you. In terms of 2, though, I would point out that we need not read this as punishment. Just as I suggest that we should not read the results of the Gan Eden narrative as punishment, or the exile from Gan Eden, or the destruction of the Tower of Bavel as punishment.

Rather, we have these angel/human hybrids. Upon man was declared this finite life. What about the children of the "sons of God" and the "daughters of man?" Perhaps they should live forever? On the other hand, they have a component of humanity in them, and man is mortal. God decides:
וַיֹּאמֶר ה, לֹא-יָדוֹן רוּחִי בָאָדָם לְעֹלָם, בְּשַׁגַּם, הוּא בָשָׂר; וְהָיוּ יָמָיו, מֵאָה וְעֶשְׂרִים שָׁנָה
The key phrase here, to my mind, is בְּשַׁגַּם הוּא בָשָׂר. That he is *ALSO* man.

But nowhere does it state that this is wicked, or that this is punishment.

Also, there is midrashic source, as well as extra-Biblical source, of similar hybrids. E.g. demons or monkeys being born from Adam as a result of succubi.

Rabbi Joshua Maroof said...

So you think that on a peshat level, the angelic reading is more compelling than, say, the "prominent people" reading, or the Bnei Shet vs. Bnei Qayin reading?

joshwaxman said...

At the moment, I don't know. I certainly think the angelic reading is a plausible reading. But I would have to reflect on the issue more, to see how I stand on it compared to the other readings.

The "prominent people" reading comes into two problems -- it might be compelling because we want it to be, because of the theological awkwardness; and it presumes that Elohim can mean prominent people like judges, which is a matter of dispute, and touches on such psukim as "ad haElohim yavo devar shneihem."

So to sum up, I don't know.

Rabbi Joshua Maroof said...

Why is there a dispute on the point of elohim plausibly meaning prominent people? I assume you refer to academic scholars and not believers in Torah Shebal Peh, since among the latter this is generally taken for granted.

I am curious as to your general attitude toward secular biblical scholarship and its broader implications - your approach seems like an interesting mix of openness and orthodoxy.

Anyhow, resolution of the elohim issue seems clear from these two pesuqim:

"Vehaya hoo yihyeh lecha lefeh; v'ata tihiyeh lo lelohim."

"R'eh netaticha elohim lefaroh; v'aharon ahicha yihyeh neviecha."

This allows the verses that use "Elohim" in an ostensibly judicial way to be taken as the classical mefarshim interpret them - as representatives of God in the sense that they establish mishpat.

I found it interesting that Kass and his "teacher" Sacks, neither of whom are Orthodox, both accepted the Qayin/Shet reading as peshat.

Rabbi Joshua Maroof said...

Oh, and what about, "Ani amartee elohim atem, uvnei elyon koolechem", which is ostensibly addressing those who pervert justice on Earth, not heavenly beings.

Rabbi Joshua Maroof said...

And come to think of it, "asher yarshiun elohim yeshalem shenayim lereehu" - where do we ever find Elohim as a divine name in the Torah paired with a verb in the plural form?

joshwaxman said...

Good points, all of them.

Indeed, I was referring to academic scholars who propound this. IIRC, some of them interpret Elohim in some of these cases as house-gods, and written as a carry-over from idolatrous days. But this is also perhaps interpretable as a reference to Hashem.

It is a good question about methodology. To an extent, I play the game by different rules when trying to determine derash and trying to determine peshat. This has its precedence in some classic meforshim, especially if it does not carry over to the realm of practical halacha. This particular case is rather hairy, since the occurrences of Elohim as prooftext appear in some cases in law code sections.

Which is "truth," peshat or derash? In some instances I have tried to show how derashot end up proving legal conclusions which can be read into a particular peshat of the text, which is not otherwise the most obvious understanding. And there is also following the determination of the shofet.
But this is all getting far afield.

Each of the examples you cite have to be considered carefully in turn. *Off the cuff,* "Ani amarti," with its poetic pairing of Benei Elyon, could me metaphorically comparing them to angels.

Elokim paired with a plural verb might be Naaseh Adam BeTzalmenu. (But perhaps not.)

Elohim paired with Navi to Pharaoh can be taken as metaphorically making Moshe as if a God, with Aharon as his prophet, without resorting to judicial aspects.

I haven't looked into the Kayin/Shet interpretation, but I will try to check it out.

joshwaxman said...

Note also that the above should not be taken as a *rejection* of the interpretation of Elohim as judges. There are good proof-texts to this reading, as you have offered, and it is a plausibility, in my opinion.

However, I was just noting that this particular interpretation of Benei Elohim as prominent individuals brings us into this dispute as to the meaning of Elohim -- indeed, Benei Elohim can be perhaps a proof-text in the opposite direction -- which is a complicating factor. That is, what you decide in one would impact the other. This wouldn't be the case with the other two interpretations.

Rabbi Joshua Maroof said...

I saw the house-gods interpretation in Alter's perush, but it seems like a stretch to read this into such a vehemently monotheistic and anti-idolatrous work.

Although "Naaseh Adam" and "Nereda" are plurals, they are part of declarations or pronouncements, not descriptions - they represent the "Royal We". Yet when the Torah describes the actual creation of man, it says, "Vayivra", not "Vayiveroo". Similarly, it would say "asher yarshia elokim" if it referred to God.

I agree that my other prooftexts can be taken metaphorically - and probably are intended as such. But they are indeed referring to human rulers, which is still noteworthy.

The Qayin/Shet interpretation - either that the children of Sheth are called bnei Elohim because they lived in a way that reflected their nature as "btselem elokim" and the bnei Qayin were bnei adam because they were materialistic humanists, OR that the children of Shet were bnei Adam because they are directly referred to as children of adam in the genealogies and are described as dying (mortality), while children of Qayin acted as if they would live forever (and their deaths aren't mentioned) and were thus dubbed "bnei elohim" - is originally described in Ibn Ezra and cited as peshat by Shadal in his perush.

Hirsch brings this interpretation in his commentary. Leon Kass also embraces it, mentioning both "versions" of the approach and marshalling prooftexts for each.

DoweedhYaAgob said...

That he heard Muawiya bin Abi Sufyan (talking) on the pulpit in the year when he performed the Hajj. He took a tuft of hair that was in the hand of an orderly and said, "O people of Medina! Where are your learned men? I heard the Prophet forbidding such a thing as this (i.e. false hair) and he used to say, 'The Israelis were destroyed when their ladies practiced this habit (of using false hair to lengthen their locks).

I was browsing through hadeeths and seen this particular one. I follow the shita of RaMbaM and he says a married woman should wear a mithpahHath and a rodhidh. This is most likely a hijab type head covering. However, Mori Gafih says the misSwoh of covering the hair is sufficient with a wig because it is not the woman's hair. I have the problem of sSniuth. Covering the hair is indeed covering however it is not sSniuth to do so. Thoughts?

Mind deleting my other post and edit this part out ty.


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