The 'laws' of tznius

Introduction

In recent times, many sefarim have been published about tznius, concentrating almost entirely on the way women are supposed to dress. This phenomenon did not exist in the past. The Rambam, Shulchan Aruch and their contemporaries did not devote sections of their compilations to this topic.[1]

One reason some have given for this new development is a decline in standards. Women used to know intuitively which clothes were appropriate, and it was not necessary to spell out every detail. The new publications are written with a considerable degree of sadness over their necessity.[2]

I do not dispute this explanation, although I believe that the issue is deeper. The Rambam did not leave out the prohibition of murder, despite the fact that it is intuitive.[3] As he writes in his introduction, his compilation was intended to be all-encompassing.

I am aware of only one place where Chazal describe a specific instruction to women over dress. The gemara infers from the uncovering of the head of the sotah that generally speaking, Jewish women are commanded not to go out with their heads uncovered.[4]

This does not mean that heads is the only part of the body that needs to be covered. In other places in the gemara it is clear that certain styles of dress are inappropriate, but we must pay attention to the way that these ideas are written.

‘Das Yehudis’

The gemara tells us that if a woman reveals the upper part of her arms in public, she is considered a ‘violator of das yehudis’ (the code of Jewish women) and her husband may divorce her without paying her kesuvah.[5] This is the source many bring to obligate a woman to cover her upper arms. Practically, I do not disagree with this conclusion. However, I believe that it is a mistake to relate to halachos like these in the same way we relate to the measurements Chazal give us for mitzvos like sukkah and lulav.

Rashi explains that ‘das yehudis’ refers to restrictions that are customary, despite not being written (in the Torah). Rabbeinu Yehonasan adds that these practices of Jewish women are out of tznius b’alma (‘mere’ modesty). Clearly then we are dealing with something subjective, dependent on the norms of the community. But how can a failure to adhere to a ‘custom’ be grounds for divorce?

The answer lies within the very definition of tznius. The Rambam writes that a talmid chacham wears neither clothes of kings that everyone looks at, nor the clothes of paupers that shame those who wear them.[6] The idea is clear, that dress is just one part of the modest conduct we are supposed to engage in. The same principle applies both to men and women, except that due to a difference in human nature certain types of clothing worn by women may draw attention where similar clothing on men would not.

This explains why ‘custom’ is so critical in this area. If someone walked on the streets of a modern city in clothes from the days of the Roman Empire, this would not be modest conduct no matter how much of his or her body was covered. The same would apply if clothing commonly worn in mid-Africa was worn in Europe.

If a married woman acts or dresses in a fashion that is considered unbecoming by her peers, this can cause the breakdown of her marriage.[7] This would not be the case if she violated a custom in another area, for example by eating kitniyos on Pesach in an Asheknazi community. In fact, even real transgressions are not grounds for divorce if they are unrelated to the family.[8]

With this in mind, we must ask if there is any basis for obligating an unmarried woman to a dress code. Certainly unmarried women are also supposed to act modestly like with other midos, and this includes dressing in a way that does not draw attention. The question is whether there is any formal obligation or prohibition involved.

Lifnei Iver

The answer to this question is dependent on a prohibition addressed to men. A man must not look extensively at a woman who is forbidden to him, or even at her clothes.[9] It follows that if a woman dresses in a way designed to draw such attention, she violates the prohibition of causing others to sin. However, to get a clearer idea of what is included in this we must define the commandment not to put ‘obstacles in front of the blind’ in more general terms.

Chazal learn from this commandment that one must not offer wine to a nazir, or meat detached from a live animal to a non-Jew.[10] It is clear that the prohibition applies even when there is no desire to cause a transgression, as the gemara includes in it the sale of things that will be used for idolatry or forbidden work during shmita.[11] No dispensation is given for the fact that the intention is merely to do business.

However, elsewhere the gemara tells us an important rule. Whenever there is a reasonable possibility that no prohibition will be violated, it is permitted to sell something that could be used in a forbidden way. For this reason one may sell farming tools during shmita if they are not always readily available to buy, relying on the possibility that the buyer plans to use them after shmita.[12]

It would seem that the same principle applies when it comes to dress. Whenever there is a reasonable chance that dress will not cause men to look extensively, the prohibition of lifnei iver does not apply.

Obviously it is impossible to know exactly which clothing falls into this category, but one thing is clear to me. The boundaries cannot be fixed by any codebook, and depend on the time, place and a large number of other factors. The main thing is to follow the guidelines of the Rambam, acting and dressing in a way that does not draw attention.

Erva

One other major issue still needs to be explained. The gemara tells us that a tefach (fist-area) of the body of a woman is considered an erva (lit. nakedness or lewdness). The gemara explains that here we are not discussing the prohibition of looking at women, as this prohibition applies even to a little finger. Rather the issue of erva applies to one’s wife, at the time one is reciting Shema (or other divrei torah). Due to the sanctity of what one is doing, at this time he must not be able to see a tefach of his wife’s body (in an area that is normally covered).[13]

The gemara goes on to say that the calf (שוק) is also considered an erva for this purpose. The rishonim explain that although this part of the body of a man is not considered private, it is an erva for a woman.[14] The acharonim debate whether this is a blanket rule irrespective of minhag, or whether this too is dependent on the prevalent custom.[15]

The generally accepted rule that women must cover their legs up to the knee is derived from this gemara. This is based on a mistranslation of the Hebrew word שוק as being the thigh. The truth is that it is quite clear elsewhere that the term refers to the calf, with the word ירך used for the thigh.[16] However, despite the fact that this minhag may have started from a mistake, deviating from it in a place where it has become accepted constitutes a violation of das yehudis as explained above.

Hair

In summary, all of the various issues involved in modest dress are subjective, which explains why no attempt to codify these ‘laws’ was made until recent times. However, as I wrote at the beginning, there is one exception. A direct command was given to women to cover their hair, explaining why the vast majority of poskim maintain that this command is not dependent on minhag.[17]

Here, as we are dealing with a formal commandment it is relevant to discuss precise measurements. R’ Moshe Feinstein claims that it is ok to leave up to a tefach of hair uncovered. In short, he argues that all we can learn from the uncovering of the hair of the sotah is that uncovering the hair in similar fashion is forbidden. As presumably a large amount of the hair of the sotah was uncovered, only a similar amount of uncovering is forbidden normally. However, since hair is also an erva, women must not uncover more than a tefach.[18]

This ruling of R’ Moshe is novel to say the least. One would have expected Chazal to spell out such a measurement in regards to the hair if it existed. On the other hand, it is also clear that only the hairs on the head need be covered and not the hairs around the ear. It is not clear where the cut-off point is, or more precisely where the head ends and the face starts.

With questions like this, until we can find a clear proof we again turn to minhag. As Chazal say, “Whenever an halacha is doubtful, follow the common practice.”[19] Obviously though, the practice of those who are not attempting to keep this halacha in its entirety can be discounted.

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[1] Although the Shulchan Aruch has a section about the laws of tznius, this deals not with dress but with marital relations.

[2] R’ Falk in his introduction to ‘Oz vehadar levusha’.

[3] The Rambam himself writes in his introduction to Pirkei Avos that even if this and similar prohibitions would not have been written in the Torah, it would have been correct for us to forbid them.

[4] Kesuvos 72a

[5] Ibid. 72b in explanation of the Mishna. I have translated the term זרוע as ‘upper part of the arm’ (from the elbow) based on the Mishna in Aholos 1:8, although I have refrained from discussing this at length as my conclusion makes it irrelevant.

[6] Hilchos Deios 5:9

[7] In the times of Chazal this did not apply to similar behaviour by men, as women generally preferred having an ungainly husband over no husband (see Kesuvos 75a). Grounds for forcing the husband to divorce included certain physical illnesses as well as those involved in particularly unpleasant jobs (Kesuvos 77a, Yevamos 65b).

[8] See Rosh (Kesuvos 7:9) who says that if she eats non-kosher privately and does not also mislead her husband into eating, she does not lose her kesuvah.

[9] See Avoda Zara 20a-b. Practically this prohibition applies to any adult woman except ones wife, as all others are either married to someone else or in a state of niddah (menstrual impurity). I have translated the root להסתכל as looking extensively, based on the gemara that deals with a case of the beracha made upon seeing beautiful people (or animals). It is clear from many places that men are not required to avoid all sight of women (see for example Bava Basra 57b), but it is also clear from the gemara in Avoda Zara that the prohibition applies even when there is no lustful intent.

[10] Avoda Zara 6b

[11] Ibid., Shevi’is 5:8

[12] Avoda Zara 15b. However, when it comes to non-Jews it seems that this leniency only applies when in the majority of cases no violation will be caused. See Nedarim 62b.

[13] Berachos 24a

[14] Rashba in the name of the Ra’avad.

[15] See Divrei Chamudos 116 (on the Rosh), Mishna Berura 75:2

[16] See for example Mishna Aholos 1:8. This is pointed out at length by the Chazon Ish, Orach Chaim 16:8

[17] Although here too das yehudis requires women to cover their hair even in situations when the Biblical obligation does not apply, see Kesuvos 72a.

[18] Igros Moshe, Even Haezer 1:58

[19] Yerushalmi Peah 7:5