Saturday, September 20th, 2014

The Ben Ish Hai and Women’s Hair Covering: An Interesting Case of Censorship? by Jacob Sasson

May 16, 2011 by  
Filed under Halakha, New Posts

While the nature of the obligation for married women to cover their hair has long been a subject of debate, most poskim agree that some degree of obligation exists, regardless of time or place.  Nonetheless, a number of poskim have dissented from that conventional position for a variety of reasons. 

In the past several years, Rabbi Michael Broyde has engaged in online discussions regarding what he considers a limud zechut (post facto justification) for women not to cover their hair.  These discussions culminated in a masterful article by Rabbi Broyde, “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?”, Tradition 42:3, Fall 2009.  (This article is available for free downloading here)

Included in Rabbi Broyde’s limud zechut is a citation of the work Chukei Nashim (חוקי נשים – Laws for Women) by Rabbi Yosef Haim (1832-1909, Baghdad), author of Ben Ish Chai and one of  the leading poskim and kabbalists of the Middle East during the last half of the 19th century and the early part of the 20th century.  The stature of the בן איש חי as one of the preeminent poskim is indisputable and gives his position a measure of legitimacy.  Having recently rediscovered the works of the Ben Ish Chai in the context of a research paper on another topic, I found this alleged limmud zechut difficult to believe, especially given his general stringency regarding these matters and his kabbalistic leanings. I was therefore not satisfied to let R’ Broyde “read into” a particular phrase of the Ben Ish Chai a radical opinion, even if just as a limud zechut, and therefore went to examine the actual source itself.

Origins of Chukei Nashim

In the common edition of Chukei Nashim (available here),  Rabbi Yosef Haim (as cited by R’ Broyde) writes as follows (English translation provided below):

 

והביטו הנשים על אנשי אירופה, מנהגם לא להסתר מפני זרים, ובכל זאת מלבושיהם מסודרים, לא מתגלה מגופם, רק פניהם וצוארם, כפות ידיהם וראשם. ואמת נכון מגולה שערם, ולפי הדין שלנו אסור הדבר, אבל יש להם איזה התנצלות, כי אומרים לא נתיישב המנהג הזה אצל כל נשותיהם, מבנות אומתם וחוץ לאומתם, נעשה גילוי השער, כמו גילוי פניהם וכפות ידיהם, ואינו גורם הרהור אצל האנשים, במבט עיניהם                                      

The quote cited by Rabbi Broyde is found in the sefer חוקי נשים, published in 1950 by the Machon Ben Ish Chai. What R’ Broyde fails to mention in his bibliography is that the sefer חוקי נשים was not written by the Ben Ish Chai.  It is, rather, Rabbi Ben Zion Mutzafi’s[1] translation of the Qanun-al-Nissa (קאנון אל נסא), published by the Ben Ish Chai in 1906 and written in Judaeo-Arabic.[2] Much like the Judaeo-Arabic translation of the Ten Commandments that is attributed to Saadia Gaon and other Arabic writings, the Qanun is written in a poetic metre/rhyme that is lost in translation. 

Changes in the Hebrew Edition

I had suspected that the original version would prove Rabbi Mutzafi wrong or at least add context to his quote.  In fact, I proved to be wrong.  What I found was that (1) rather than it be melamed zechut, the original paragraph was more of an endorsement of the practice of uncovering hair than Rabbi Mutzafi allows; and, (2) the final line of the paragraph was omitted from the Hebrew translation. 

The relevant section (available here) of the Qanun reads:

ושופו נסוואן אהל אירופא. סלוכהום מא יתכבון מן אל גרבא. ומע האדה חוואסהום מרתבא. מא יביין מן גסמהום. גיר פקט וגהום וחלקהום. וכפופהום וראסהום. וצחיח מכשוף שערהום. ומוגב דייאנתנא לם יגוז הל מסלך להום. לאכן אכו פרד עצר ענדהום. יקולון מא זאל האדה מסלך גמיע נסוואן בלאדהום. במלתהום וכארג מלתהום. סאר שוף שערהום. מתל שוף וגהום ואידיהום. מא בקאלו שעשעה ענד אל רייאגיל. בשוף עינהום. האדא כלאמהום. אלדי יגאוובון עלא האדה מסלכהום. ומא ענדנא גוואב נגרח להאדא גוואבהום

 

What follows is a side by side comparison of the relevant paragraph, in translation: 

My translation of the original Qanun (emphasis mine) Rabbi Broyde’s (Fn2) translation of the common edition of Chukei Nashim[3]
Look at the women of Europe Our women looked at the women of Europe
Whose custom is not to hide[4] themselves from strangers Whose custom is not to reveal themselves to strangers
Nonetheless their clothes are orderly; they do not reveal their bodies except only their faces, necks, hands, and heads.  It is true that their hair is uncovered and this custom of theirs is not possible according to our laws.  But, they have one justification And their clothes are proper and they do not reveal their body, but only their face, neck, hands and head.  Yes it is true that they reveal their hair, which according to our halacha (din shelanu) is a prohibited act, but they have a justification
They say “Yet still, this custom (of having their hair uncovered) was accepted by all their women – both Jewish and Gentile – to go with their hair uncovered like the revealing of their faces They say this practice [to cover hair] was never accepted[5] by all their wives, and both Jewish and gentile women have made hair revealing like revealing of face and hands
It does not cause sexual thoughts in men when they see it with their eyes.” And causes not sexual thoughts in men.
These are their words which they answer for this custom and we do not have an answer to be דוחה this answer of theirs.[6] (omitted from the Hebrew)

 

What is clear is that the בן איש חי ‘s opinion is more than a limud zechut.  He firmly establishes as incontrovertible the sociological nature of the obligation to cover hair.  While not alone in the Sephardic world, the existence of such an opinion by a posek and mekubbal of his stature is, indeed, remarkable.  Coupled with his well-known lenient views on abortion[7] and not so well known lenient views on women’s Torah study[8], such a view is noteworthy.

Changes in the English Edition

Recently, an English translation of the Qanun, published by Salem Books of Jerusalem, was prepared by Moshe Schapiro and edited by S.D. Kaplan.  Whereas the publisher does not indicate whether the translation was based on the original Qanun or Rabbi Mutzafi’s Hebrew translation, it bears a closer resemblance to the latter.  Nonetheless, the English translation is glaringly divergent with the first and last sentence of the relevant paragraph (in bold below) not found anywhere in Rabbi Mutzafi’s translation, let alone the original.  The additional sentences are seemingly aimed at further minimizing the scope of the Ben Ish Hai’s lenient treatment of the matter.  The English translation reads (emphasis added): [9]

One should not think that this law [to dress modestly] is only binding in Islamic countries, where custom dictates that women must not be seen by strangers.  Even in Europe, where it is acceptable for women to speak to strangers, Jewish women, nevertheless, dress in accordance with the above-mentioned guidelines.  And although it is true that many of their women do not cover their hair, which is strictly prohibited according to Torah Law, they claim in their defense that uncovered hair is not considered any more immodest than the hands or the feet, since it does not cause Jewish men in Europe to think unclean thoughts.  Thus, we see that even those who are lenient about covering the hair agree in principle that a woman must dress modestly, and that other parts of her body must remain covered.[10]

 

Jacob Sasson is an attorney residing in New York City.

 

 


[1] Rabbi Ben Tzion Mutzafi, a well respected Jerusalem Rabbi and author of the ש”ות מבשרת ציון, is the scion of a prominent Baghdadi family.  His father Rav Salman Mutzafi was one of the great kabbalists of the last generation.  Rabbi Mutzafi hosts a popular radio program and conducts daily public lectures in various Jerusalem synagogues.  His website is available here. I have been unable to reach Rabbi Mutzafi by phone and my email to his website went unanswered. 

[2] A copy of the Qanun has been digitized by the JNUL and can be accessed here.

[3] It should be noted that in various presentations (both print and online) of his argument, Rabbi Broyde has slightly changed his English rendition of the text. 

[4] The word יתכבון is related to the Hebrew word נחבא. 

[5] The Hebrew reading “lo nityashev” may have created difficulty for Rabbi Broyde.  On the one hand, “this custom” must mean the custom to go with hair uncovered as this is the custom under discussion.  Yet, it makes little sense to say that the custom to go with hair uncovered was not accepted by the general population.  That would run contrary to the argument put forth.  Hence, the different translations of the Mutzafi text.  The Arabic portion reads: Ma Zal hada…. The Arabic ma plays a role similar to the Hebrew lo which may have caused Mutzafi to translate it as “lo nityashev“.  Nonetheless, the expression ma zal literally means, “has not ceased”, or colloquially, “yet, still”.

[6] The last line, explicitly permitting the practice, reads in the original:

האדה כלאמהום אלדי יגאוובון עלא האדה מסלכהום ומא ענדנא גוואב נגרח להאדא גוואבהום

[7] See Rav Pealim (1: EH4) as well as the Tzitz Eliezer (13:102).

[8] See the recently published Ilan H. Fuchs, “‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case,” in Leib Moscovitz, ed., The Manchester Conference Volume [=Jewish Law Association Studies XX] (Liverpool: The Jewish Law Association, 2010), 43-74, in which he cites the Ben Ish Hai’s permissive attitude toward women studying Talmud, noting how his own grandmother studied 18 chapters of Mishnayot a day!

[9] Rabbi Yosef Chaim, Laws for Women, translated into English by Moshe Schapiro, edited by S.D. Kaplan.  Published by Yeshoua Salem [sic], Salem Books, 108 Jaffa St. 5771 – Jerusalem.  Page 96.  Telefax: 972 2 5389176

[10] Parenthetically, for another example of  censorship of the Ben Ish Hai, see Rabbi Yaakov Hillel’s Vayashov Hayam (1:14), in which he advocates for the censorship of a particular responsum of the Ben Ish Hai (Rav Pealim helek 4 kuntras Sod Yesharim siman 5).  Note, however, Or Lesion 3 (17:6) by the late Porat Yosef Rosh Yeshiva, Rabbi Ben Zion Abba Shaul, who cites the responsum approvingly.

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