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Mark Brustman, aka Faris Malik author of Born Eunuchs Home Page and Library http://www.borneunuchs.org Physically Intact, Procreative, Heterosexually Impotent “Eunuchs”

in Pre-Socratic Pagan, Roman, Talmudic, Early Christian and Early Islamic Law and Literature, and the Cause of their Disappearance

There exists in ancient law and literature of the pre-Socratic pagan, Roman, Byzantine Christian, and Islamic worlds, as well as in Talmudic texts, a physically intact, procreative “eunuch,” defined by erectile dysfunction with women, and contrasted with anatomically deprived “eunuchs,” who in turn are defined by their lacking the anatomical organs of procreation. The distinction between these two classes of eunuchs remains relatively stable over centuries and across cultures until a shift occurs at some point in historical time, which comes in the European Christian world during the fourth century in the context of the Arian controversy, and in the Middle Eastern Muslim world during the ninth century at the height of the Abbasid Caliphate, when certain authorities begin to reserve the words signifying eunuchs exclusively for men with anatomical defects in their genitals. Yet, even as late as 18 century Europe, some authors still persist in recognizing certain types of physically intact men as “congenital eunuchs.” In this paper I will begin by discussing the secondary literature by modern historians that shows an awareness of the complexities of the eunuch category in ancient sources, but that so far does not adequately analyze the category of anatomically whole eunuchs. Then I will attempt to remedy that lack, with an analysis of Roman, Talmudic and Islamic law sources to trace certain characteristics of anatomically whole eunuchs.
th

Recent Scholarship Some recent secondary literature on eunuchs in the Roman and Byzantine eras cites, but does not thoroughly explore, the varied classifications of men identified as eunuchs in ancient sources. These tentative steps toward accounting for the complexity of the eunuch category found in the ancient primary

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-2sources are often unclear or unsustained, and usually give way to a focus on castration as the defining characteristic of eunuchs.
1

Many historians writing about eunuchs never mention at all the range of conditions that were included under the term or only present a range of physically deprived eunuchs. They simply take it as a given that eunuchs are physically emasculated men, and the notion of a natural eunuch is never brought up. Shaun Marmon states unequivocally that “the eunuch, after all, unlike the hermaphrodite, is made, not born”. That should not be taken for granted. As we will see in the section on law, the founders of three of the four major schools of Islamic law referred to physically whole procreative eunuchs, the exception being the founder of the last school, Ahmad ibn Hanbal. The absence of a history accounting for anatomically whole natural eunuchs is a gap that must be remedied. Procreative eunuchs are found throughout the ages in legal, literary, scientific and theological texts, but no one has recently attempted to describe their characteristics, or how those characteristics might have been perceived differently in different historical periods. If they could technically procreate, what made them eunuchs? Why was it considered worthwhile to distinguish them from ordinary men? This short essay will not be able to answer these questions definitively, but will focus instead on proving
2

1

A somewhat gauzy problematization of the eunuch category without any clear definitions is provided in Piotr O. Scholz, Eunuchs and Castrati: A Cultural History, translated by John Broadwin and Shelley Frisch, Princeton: Markus Wiener, 2001; originally published as Der Entmannte Eros: Eine Kulturgeschichte, Düsseldorf: Artemis & Winkler, 1997. For examples of scholarship that notes distinctions between types of eunuchs but treats anatomical emasculation as a defining characteristic of eunuchs, see Walter Stevenson, “The Rise of Eunuchs in Greco-Roman Antiquity” in Journal of the History of Sexuality 5/4 (1995): 495-511; and especially Kathryn Ringrose, “Living in the Shadows: Eunuchs and Gender in Byzantium,” in: Gilbert Herdt, ed., Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History, New York: Zone Books, 1993, pp. 85-109; and idem, The Perfect Servant: Eunuchs and the Social Construction of Gender in Byzantium, Chicago: University of Chicago, 2003. Ringrose disregards congenital impotence in a physically intact man as an explanation for the natural eunuch category. Instead, she makes a case for born eunuchs as sufferers from some sort of androgen insensitivity such as 5-alpha-reductase deficiency or Klinefelter’s syndrome (“Perceiving Byzantine Eunuchs Through Modern Medicine,” published as a PDF on the Internet) or “who were born with underdeveloped sexual organs due to chromosomal abnormalities," or even as “individuals, male or female, young or old, who elected to remain celibate all their lives" (“Eunuchs in Historical Perspective” in: History Compass 5/2 (2007): 495-506, especially p. 496). In other words, Ringrose says some people become “natural” eunuchs through lifestyle choices they have made. 2 Shaun Marmon, Eunuchs and Sacred Boundaries in Islamic Society, New York: Oxford University Press, 1995, p. 63.

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-3that the question is important by showing that throughout the historical sources until a certain point in time there is a pervasive distinction between two major types of eunuchs: (1) castrated eunuchs and (2) uncastrated eunuchs who are procreative, and not missing any anatomical parts, but are merely impotent, or merely impotent with women. I will be working with materials in four languages, but each language has a general word for eunuch that covers both types. In Latin the word is spado (in later sources eunuchus is used), in Greek the word is ευνουχος (and rarely σπαδων is used), in Hebrew the word is saris, and in Arabic the word is khasī. In all of these languages, except perhaps Hebrew, there is also another word used when the source wants to specify a “cut” eunuch: Latin castratus, Greek εκτομιας, and Arabic majbūb.

Diverse Category The earliest text I am aware of that makes an explicit distinction between natural and artificial eunuchs is the Gospel of Matthew. This is not to say that the two different types of eunuchs cannot be detected in earlier texts by their divergent characteristics, but rather only that these earlier texts did not list the two types side by side as different types, as occurs in Matthew 19:12. There is plenty of evidence of genitally intact and even procreative eunuchs in earlier literature going back at least to Hammurabi’s Code. I want to make the dichotomous categorization of eunuchs plausible by paying attention to the
3

3

The Babylonian Laws, edited with translation and commentary by G.R. Driver and John C. Miles, 2 vols., Oxford: Clarendon Press, 1952, vol. 2 p. 75, shows a provision of the Code of Hammurabi that addresses the situation when a girsequ, a type of palace official which Driver and Miles says “seems to have been a eunuch” (p. 245), or a salzikrum (literally “male daughter”) each has a child whom he or she gives up for adoption, and then the child wants to leave the adoption and return to the girsequ father or salzikrum mother. In ordinary cases of adoption under the code, a child who rejects his adoptive parents can be reclaimed by his natural parents, but neither the girsequ nor the salzikrum can reclaim his or her child in that situation. Driver and Miles insist (vol. 1 p. 392) that this is not about the natural child of the girsequ or salzikrum but rather that these are the adoptive parents, even though word used for the child of the girsequ or salzikrum is not the usual term for adoptive child (tarbitum) but the term for a natural child (mārum). Driver and Miles make a pronouncement that “reference … is clearly not to children born of these persons … for there is every reason to suppose that neither the chamberlain nor the SAL-ZIKRUM had natural children”. In fact, the only reason to suppose that would be if the girsequ or salzikrum were physically incapable of procreating, but there is no reason to assume that, and Driver and Miles do not offer any.

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-4important, substantive distinctions in legal rights that were granted to anatomically whole versus castrated eunuchs in codes from the Talmud to Roman law to Canon law to Islamic law. The book of Yebamoth in the Babylonian Talmud refers to two types of eunuchs, the “eunuch of man” (saris adam) and the “eunuch of the sun” (saris chmeh). The Soncino edition of Yebamoth explains that the “eunuch of the sun” has been a eunuch since the sun first shone upon him. That saris means eunuch is supported by the fact that the Septuagint translators, who translated the Hebrew scriptures into Greek in Alexandria, Egypt, in the 2
nd 4

century BCE, used the Greek word ευνουχος to translate saris in

37 of the 45 occurrences of the word in the Hebrew text, and twice used σπαδων (the Greek word from which Latin borrows spado, the most commonly used Latin word for eunuch). In the older Mishna portion of Yebamoth, the rabbis of the early 2
nd 5

century CE face the problem

of whether a saris is required to submit to a ceremony called chalizah, and whether the brother of a deceased saris is required to do the same. Chalizah is a ritual in which the brother of a deceased childless man is publicly humiliated if he refuses to marry the widow and give her a child on the

In the Hebrew scriptures, a type of person called a saris is mentioned in 45 verses (Genesis 37:36, 39:1, 40:2, 40:7; 1 Samuel 8:15; 1 Kings 22:9; 2 Kings 8:6, 9:32, 18:17, 20:18, 23:11, 24:12, 24:15, 25:19; 1 Chronicles 28:1; 2 Chronicles 18:8; Esther 1:10, 1:12, 1:15, 2:3, 2:14, 2:15, 2:21, 4:4, 4:5, 6:2, 6:14, 7:9; Isaiah 39:7, 56:3, 56:4; Jeremiah 29:2, 34:19, 38:7, 39:3, 39:13; 41:16; 52:25; Daniel 1:3, 1:7-11, 1:18). In none of the verses is being a saris equated with or explained as physical emasculation. On the other hand, in Deuteronomy 23:1, men emasculated by crushing or cutting of the genitals are excluded from “entering the assembly of the Lord”, but the word saris does not appear in this context, nor does any other word designating these physically emasculated men. In India, the Manusmriti law code refers to a figure called the kliba. Wendy Doniger (The Laws of Manu, with an introduction and notes, translated by Wendy Doniger with Brian K. Smith, New York: Penguin, 1991, p. 328) defines a kliba as "a sexually dysfunctional man, who might be, according to the context, impotent, homosexual, a transvestite, or, in some cases, a man with mutilated or defective sexual organs." According to Law IX 201-203, a kliba is excluded from inheritance rights – but if a kliba "should somehow desire" a wife, then "the children of those of them that produce offspring have a right to an inheritance" (Doniger, ibid., p. 220). 4 The Babylonian Talmud, translated into English with notes, glossary and indices under the editorship of Rabbi Dr. I. Epstein, London: Soncino, 1936, specifically Yebamoth vol. II, translated by Rev. Dr. Israel W. Slotki, sec. 79b – 81a, pp. 538-549. The explanation of the meaning of saris chmeh is on p. 538, footnote 11. 5 Σπαδων is used in Genesis 37:36 and Isaiah 39:7. Twice the phrase rav-saris (“chief eunuch”) is transliterated into Greek as if it were a proper noun (2 Kings 18:17: Ραφις; and Jeremiah 39:3: Ναβουσαρεις), and in four verses (1 Chronicles 28:1; Jeremiah 34:19, 38:7 and 39:13) there is no Greek word in the translation corresponding to the Hebrew saris.

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-5deceased’s behalf, as required by the Torah. The view that prevails is that the widow has a right to the so-called “levirate marriage” if her deceased husband was an artificial eunuch (saris adam), but not if he was a natural eunuch (saris chmeh). On the other hand, no eunuch is required to marry the widow of his brother, so in that sense the two types of eunuchs are treated the same. In the early 3 century CE, Roman law recognized that eunuch (Latin: spado, pl. spadones) was a “general designation” that included “eunuchs by nature” (spadones ex natura), crushed and pressed eunuchs (thladiai and thlibiai, from Greek words θλαω meaning “to crush” and θλιβω “to pinch, press”) and “any other type of eunuch”. Castration and the making of thladiai and thlibiai were equally punishable practices under Roman law, and it is reasonable to assume that castrati were included here under “any other type of eunuch”. And indeed, when slave spadones entered into marriage-like relationships and received money in lieu of a dowry, if they were later were sued by their wives to recover the money, Roman jurist Ulpian held that a distinction must be made as to whether the spado was castrated or not. A castrated spado could not enter into a marriage in any case, while an uncastrated
9 8 7 rd 6

6 7

Deuteronomy 25:5-10. Digest of Justinian 50.16.128. For a Latin and English facing page edition, see The Digest of Justinian, Latin text edited by Theodor Mommsen with the aid of Paul Krueger, English translation edited by Alan Watson, 4 volumes, Philadelphia: University of Pennsylvania Press, 1985. A thorough discussion of the meaning of the terms spadones and eunuchi and of eunuchs and impotence in Roman law is provided in Aidan McGrath, O.F.M., A Controversy Concerning Male Impotence, Rome: Editrice Pontificia Università Gregoriana, 1988, pp. 24-31, and 49ff. who also cites th other references. McGrath provides an excellent account of the difficulties faced by 16 century interpreters of the Roman laws regarding eunuchs and spadones and of an edict of Sixtus V prohibiting marriage by eunuchs, entitled “Cum frequenter”. He never attempts to decide finally what the Roman jurists meant by spado, but the implication that he leaves with the reader is that some types of the spadones were able to perform sexually and emit semen, and for that reason they were able to marry and were considered healthy by Ulpian, but they were unable to procreate because of not having actual fertility. I will attempt to show that in fact, some eunuchs could procreate according to Roman, Talmudic and Islamic jurists. In any case, McGrath emphasizes the confusing nature of the distinction of types of eunuchs and presents a number of interpretations of the spadones that would be consistent with erectile dysfunction in the presence of a full set of male genitalia. 8 Digest of Justinian 48.8.4-5. 9 ibid., 23.3.39. Slaves were not empowered to enter into marriages in Roman law, but they could enter into relationships as if they were marriages and exchange money as if it were a dowry. If the slave later became free, the relationship would be converted to a legal marriage and the money given upon originally entering the relationship would be interpreted as a dowry.

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-6spado could, so the money given to a castrated spado was not analogous to a dowry and the woman could not reclaim it. In another legal context, Ulpian finds that a slave buyer who unknowingly buys a spado is not entitled to rescind the purchase agreement,
10

while Paulus, another prominent jurist, qualifies that ruling

by specifying that if the slave is a spado “in such a way that he is missing a necessary part of his body,” then the deceived buyer can rescind the contract and get a refund.
11

Similar consequential distinctions
12

between castrated and uncastrated spadones are made in Roman laws governing adoption institution of heirs.
13

and the

In the Apostolic Canons, natural eunuchs can become bishops, themselves castrated were excluded from the clergy.
15

14

while men who voluntarily had

They make a fairness exemption for eunuchs

castrated against their will. Canon 1 of the Council of Nicea of the year 325 CE reaffirms this ruling with regard to castrated eunuchs, but natural eunuchs are not mentioned therein, a sign of things to come for the natural eunuch category. In Islamic laws codified in the 8 and 9 century CE, a woman whose marriage was not consummated, and whose husband was a eunuch (Arabic: khasī, pl. khisyān)
16 th th

or an impotent man

(‘inīn), could seek a divorce, but only after he was given a probationary period of one year in which to

10 11

ibid., 21.1.6.2. ibid., 21.1.7. 12 ibid., 1.7.2.1. 13 ibid., 28.2.6. 14 Apostolic Canon 21. 15 Apostolic Canon 22. 16 This word has no clear etymology implying the nature of the eunuchism involved. It is of the same three-letter root as the word for testicles. The same root is used in a form meaning castration, i.e. “eunuchization,” but like that word, khisā’ is a derivation from the noun and literally means “the making of a eunuch”. That does not mean that all eunuchs are made. The first general dictionary of Arabic, th compiled in the 8 century, known as the Kitāb al-‘Ain says (under the entry for kh-s-ī) that the pattern of the word khisā’ signifies a defect of some sort in an animal, analogous to other words in that pattern like ‘ishār (pregnancy) or nifār (tendency to bolt). Thus the form of khisā’ implies there is some issue with the person’s or animal’s testicles, without saying what the issue is. The testicles could be absent, or might simply be deemed inadequate for some non-anatomical reason.

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-7consummate the marriage.
17

Theoretically, this is the same treatment the judge would impose on any

man whose wife claimed her marriage had not been consummated, whether due to his being impotent or not. If the husband was majbūb , however, the dissatisfied wife could obtain a divorce immediately. This same ruling applies in all four schools of Sunni Islamic law. In another legal context, the Hanafi code requires the khasī and the majbūb to observe the same rules as normal men restricting interaction with women, but the grounds for the restriction of the khasī are also the same as those for all normal men, while the grounds for the restriction of the majbūb are slightly different.
19 18

Having shown that a variety of legal codes distinguish two categories of eunuchs and treat them differently, I will now proceed to discuss some of the characteristics of that category of eunuchs who are treated in these codes just like other impotent men, and indeed like ordinary men.

Procreative In the Roman laws, the Talmud and three of the Islamic law schools (excluding the Hanbali school), there are subjects identified as eunuchs who can procreate, albeit with difficulty. Ulpian says so explicitly in the Roman law section governing rescissions of slave purchase contracts due to undisclosed physical defects that impair a slave’s functionality. Ulpian writes: “To me it appears the better view that a eunuch (spado) is not diseased or defective, but healthy, just like the one-testicled man, who is also able

17

Shafi’ī, Kitāb al-Umm, Beirut: Dar Qutaybah, 1996, vol. 6, pp. 134-137 (Book of Nikah, Chapter on the marriage of the impotent man and the eunuch and the cut); Malik, Muwattā’, Cairo, 1967, pp. 180-181 (Book of Nikah, Chapter on the male who marries a woman and does not have sex with her because of a problem with the woman or with the man); Marghīnāni, The Hedaya or Guide: A Commentary on the Mussulman Laws, translated by Charles Hamilton, London: W.H. Allen, 1870, pp. 126-127; AlKhiraqi, Mukhtasar, n.l.: n.p., 1964, p. 144-145. 18 th Majbūb literally means “cut”, since it is the passive participle of the verb jabba meaning to cut. In the 8 century Arabic lexicon Kitāb al-‘Ain, the word jabba is used in relation to the cutting of the testicles and the cutting of the penis is not mentioned. Some later authorities, notably Ibn Hanbal and his followers, used majbūb in isolation to mean a man whose penis was cut, even with intact testicles, while reserving khasī for a man whose testicles were removed. These later definitions of majbūb and khasī th are found, for example, in the work of the 14 century Shafi’ī scholar Taj al-Dīn Subkī, Mu‘īd al-ni‘am wa mubīd al-niqam, Cairo: Maktabat al-Khānjī, 1983, p. 39. 19 Marghīnāni, ibid., p. 600.

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-8to procreate.”
20

Translating Latin into English is a tricky business, and there might be a way to interpret

the meaning of the English sentence to say that it is only the one-testicled man who is being called procreative, while leaving out the eunuch. In other words, in English, the word “also” could be viewed as adding the one-testicled man’s procreativeness as a side characteristic to his healthiness, without saying anything more about the eunuch. But this is not a possible interpretation of the Latin. The Latin word etiam translated as “also” makes it clear that “also” assimilates the one-testicled man to the eunuch in respect of the quality of being procreative. Although this statement from Ulpian is not cited in any of the more recent scholarship on eunuchs, the Roman distinction between castrated men and the type of spadones who were uncastrated and could even procreate is mentioned by historians in the nineteenth and early twentieth century.
21

The

distinction is noted in Walter Stevenson’s article cited above, where it is reinterpreted to mean that spadones were a subset of eunuchs whose castration or crushing was deemed not fully effective, and in Ringrose’s various articles attempting to explain the limited procreative ability of some “so-called” eunuchs while preserving anatomical emasculation as a constituent fact of eunuchism.
22

But the sources

do not support a bracketing off of spadones from the category of eunuchs, or a consideration of them as a divergent subset of the category. Rather, as I pointed out above, the Roman law explicitly names the word spado as the general designation, and the various types of anatomically emasculated spadones represent subsets (thladiai, thlibiai, castrati), alongside natural eunuchs. It is the anatomically

20 21

Digest of Justinian 21.1.6.2. Rodolphe Guilland, “Les Eunuques dans l’Empire Byzantin: Étude de titulature et de prosopographie byzantines”, Études Byzantines 1 (1943): 197-238, specifically p. 201, noted that there were two types of eunuchs: “those who had lost all means of procreation by means of a surgical operation” and “those whom a constitutional defect or disease had rendered unsuitable for procreation or impotent.” For the first group, Guilland explained, procreation was a definite impossibility, while for the second group it th was only a matter of probability. The 19 century article by Arnold Hug, “Eunuchen,” Pauly-Wissowa Real-Encyclopädie der classischen Altertumswissenschaft, Supplement III, Stuttgart: Metzler, 1958, while not affirming procreative capacity for eunuchs, mentioned the distinctions made between types of eunuchs, noting that men who were impotent by nature or due to an accident could be covered by the words ευνουχοι and spadones and that they were distinguished from castrati, thladiai and thlibiai in Roman law. But still neither Hug nor Guilland cited Digest 21.1.6-7. I came across this provision by looking up spado in the index of the Roman Civil Code. 22 For references to Stevenson’s and Ringrose’s articles, see footnote 1.

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-9emasculated subcategories that cannot procreate, because they have a physical obstacle to procreation. That is why Ulpian’s colleague Paulus says that “if, however, someone is a eunuch (spado) in such a way that a so necessary part of his body is absent, internally too, then he is diseased” (emphasis added). This is not Paulus disagreeing with Ulpian, but rather qualifying that not all eunuchs are indeed procreative, because some of them have anatomical defects that prevent procreation. Ulpian’s statement that some eunuchs are procreative still stands. Admittedly, there are some other provisions in the Roman law that seem to contradict the notion that eunuchs could procreate. For example, Gaius, a Roman jurist of the 2
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century CE, says in two

places that eunuchs “cannot procreate”. This is not so surprising, given that there is indeed some sort of impediment to a eunuch’s procreation, even if the impediment is not anatomical. But unlike the situations addressed by Ulpian, in the context of the legal issues addressed by Gaius the lack of procreative ability either is not crucial to the question or else it does not determine the outcome of the ruling. In one case, Gaius wonders how to determine the official start of puberty of a ward who cannot be expected to display procreative functionality at the youthful age when most boys begin to show it.
24

His solution is that

puberty for eunuchs is set at the age when it normally occurs in other boys. Other jurists simply set the age of puberty for all boys at fourteen. In the other context, Gaius affirms that “even those who cannot procreate, which are eunuchs” are allowed to adopt. early 2
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Meanwhile, one of the provisions of this Digest section on adoption, attributed to

century jurist Javolenus, states that adoption can only take place between persons who could
26

naturally be father and son.

The fact that the eunuch is allowed to adopt seems to indicate that on some

level, it must be plausible that he could have a son naturally. For example, an adoptive parent must be at least eighteen years older than the adoptee. Later when the Roman Civil Code is compiled by Tribonian in the 6 century under the emperor Justinian, the provision by Gaius allowing eunuchs to adopt is
23 24 th

Digest of Justinian 21.1.7. Gaius, Commentaries of Gaius on the Roman Law, translated by Frederick Tomkins and William George Lemon, London: Butterworths, 1869, p. 194. This is Commentary 1, Section 196. 25 ibid., p. 100. This is Commentary 1, Section 103. It is also reproduced in the Digest of Justinian 1.7.2.1. 26 Digest of Justinian 1.7.16.

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- 10 reproduced and reaffirmed in the Institutes of Justinian, but with the provision that “castrated men cannot”.
27

The difference between the ordinary eunuch (spado) and the castrated eunuch is that the

castrated eunuch is anatomically incapable of procreation, while the ordinary eunuch “does not have a bodily impediment”, as declared by Ulpian’s student Modestinus in another provision of the section on adoptions, although unfortunately Modestinus’s language is maddeningly ambiguous. I will discuss this provision and its ambiguity below when I focus on the eunuch’s physical intactness. Another section in the Roman law governing the appointment of after-born heirs refers to eunuchs (spadones) as examples of people who “cannot easily procreate” (generare facile non possit). Saying they cannot easily procreate is just another way of saying they can procreate (albeit with difficulty). Because they can procreate, they are allowed to appoint after-born heirs. Analogously, old men and men deemed sterile are also allowed to appoint after-born heirs, because old age and the uncertain diagnosis of “sterility” are not sufficiently reliable impediments to procreation to deny a man that right.
29 28

But if he is castrated, the jurists agree that he cannot appoint an after-born heir.

30

This is because

the castrated man manifestly cannot procreate, while the plain eunuch can, albeit not easily. It is important whether the after-born heir can credibly be the actual child of the eunuch, because the appointment of an after-born heir might reduce or abrogate the inheritance of previous heirs. In the Book of Yebamoth in Talmud, the procreative ability of natural eunuchs is indicated by the characterization of him as being “fit”. What that means is that he was fit to give his wife a child, since the problem to be solved by the levirate marriage is her having been left without a child when her childless husband died. Rabbi Eliezer offers the ultimately unsuccessful view that a natural eunuch should be forced into the levirate marriage, and that the widow of a natural eunuch has a right to levirate marriage, because a natural eunuch’s incapacity might not be permanent; in fact it might be cured.
27 28 31

Institutes of Justinian 1.11.9. Digest of Justinian 28.2.6. An “after-born heir” is an heir designated in the womb by a man who dies or expects to die before the heir is born. 29 Digest of Justinian 28.2.9. 30 Digest of Justinian 28.2.6.1. 31 See footnote 5 for reference.

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- 11 Meanwhile, he says, the artificial eunuch is exempt, and the widow of an artificial eunuch has no right to demand it of his brother, because an artificial eunuch cannot be cured. This shows that, for Rabbi Eliezer, the natural eunuch is hypothetically capable of procreating. Without disputing the natural eunuch’s hypothetical curability, Rabbi Joseph ben Akiba offers a contrasting ruling that prevails, namely that the natural eunuch is exempt and his widow has no right because “there never was a time when he was fit,” while the artificial eunuch’s widow has a right because there was once a time when he was fit. And the rabbis cite a case of an artificial eunuch whose widow was married under levirate marriage. That does not mean that the artificial eunuch is required to enter into the levirate marriage, however, since the rabbis ultimately decide that eunuchs do not enter into levirate marriage, regardless of whether they are natural or artificial. For my purposes, what emerges is that the natural eunuch can procreate, since Rabbi Eliezer supports the notion that natural eunuchs can procreate (if they are cured); meanwhile, Rabbi ben Akiba’s insistence that their condition has permanence need not mean that the eunuch’s incapacity is anatomical. When I get to the section on the eunuch’s physical intactness, I will discuss the later rabbis’ bemused attempts in the Gemara section of the Talmud to define the identifying criteria of a natural eunuch. I should mention that Maimonides, the 12 century Jewish lawgiver and court physician to the Saladin, also referred to natural eunuchs, but in a context that implied they were defined by erectile dysfunction and perhaps by inability to procreate.
32 th

He finds that a man who is caught in an adulterous

situation but is impotent with his unlawful female partner and must stuff his genitals into her with both hands, “like a born eunuch,” is not considered culpable for adultery and is not punishable. It is tricky to determine what, if anything, this says about a born eunuch’s procreative ability. If the reason why adultery has not been committed is because of the assumed inability to achieve orgasm and inject an illegitimate homunculus into the womb in the absence of erection, then that would imply a lack of procreative ability in this impotent man, and perhaps by analogy, in the born eunuch whom he resembles

32

The Code of Maimonides, Book V, The Book of Holiness, translated from the Hebrew by Louis I. Rabinowitz and Philip Grossman. New Haven: Yale University Press, 1965, p. 12. The phrase is used in Treatise I - Laws Concerning Forbidden Intercourse, Chapter 1, No. 11.

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- 12 in that moment. On the other hand, the resemblance between him and the born eunuch might be limited to the erectile failure in the sexual situation with a woman. Of the four major schools of Islamic law, the three earlier schools recognize the procreative ability of the khasī and only the last school, the Hanbali, does not. Abu Hanifa is the earliest of the four founders of these schools, so I will start with his school, even though the earliest sources we have for his doctrines are later than the sources for the other schools. It will be shown that the implications of his school’s doctrines on eunuchs are consistent with those of the second and third earliest schools and only differ from those of the last school, so to that extent I believe that those doctrines can be plausibly relied upon as authentically predating the Hanbali doctrine. According to the Hanafi school, one of the benefits a woman can expect from a marriage is the possibility of having at least one child, even though of course it cannot be guaranteed that a marriage will in fact be fruitful.
33

For this reason, the Hanafis require a husband to obtain his wife’s consent before he
34

practices coitus interruptus as a birth control method.

Given that the possibility of pregnancy is a wife’s

right, the fact that a khasī is given a year’s probation to consummate his marriage before his wife can obtain a divorce
35

means that a khasī must be hypothetically capable of procreating.

A passage in Shafi’ī’s Kitab al-Umm indicates precisely that the “khasī who is not cut in the penis” is able to procreate. Shafi’ī addresses a specific case in which a khasī waits until he is married and then comes out and tells his wife that he is “non-procreative” (‘aqīm).
36

The question is whether this admission

is enough to give the wife the right to an immediate divorce without requiring her to wait a year to see if the husband can consummate the marriage. And in fact the eunuch’s confession is deemed irrelevant, according to the text, for the reason that he cannot know for sure that he is non-procreative as long as he is still alive. Even for a normal male, fatherhood may be slowing in coming, which is why a man is not
33 34

Marghīnāni, ibid., p. 600, bottom of right column. B.F. Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century, Cambridge: Cambridge University Press, 1983, p. 32. 35 Marghīnāni, ibid., p. 127. 36 Shafi’ī, Kitāb al-Umm, p. 136 (Provision No. 15731). The word ‘aqīm is used in verse 42:50 of the Qur’an, where it seems to be contrasted against ordinary procreative males and females.

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- 13 required to get his wife pregnant in the probationary period; he is only required to have sex with her. This indicates that the khasī, or at least those who are not cut, are hypothetically able to procreate like a normal male. This is true even though Shafi’ī concedes that “in most cases” a khasī does not have a child. Shafi’ī is the third in time of the four founders of Sunni law schools. The second was Malik, and in his Mudawwana, he too indicates that a eunuch possesses a hypothetical procreative ability. Malik faced the question whether a khasī must take responsibility for a child if his wife gives birth.
37

The fact that the

question arises is not surprising, given that a khasī is defined by some sort of impediment to procreation. But Malik’s answer does allow for the possibility that the khasī is the father of the child. Although he would prefer to consult “the experts” on such a vexing question, Malik nonetheless offers the ruling that if the child resembles the khasī, then he must take responsibility for the child, and if there is no likeness, then he does not take responsibility. So we see that the three earlier founders of Sunni law all ascribe hypothetical procreative ability to the khasī. I will discuss the view of the fourth founder later.

Physically Intact For the Amoraim rabbis who composed the Gemara, or commentative, sections of Yebamoth, the identification of a saris chmeh ("eunuch of the sun", i.e. natural eunuch) presented a problem. It is interesting that in their musings as to possible means of identifying a "eunuch of the sun," none of the rabbis suggested looking for defects in the reproductive organs. Instead, they looked for absence of pubic hair at the age of twenty (expressly one of the signs of puberty in Roman law), absence of froth in urine, watery semen, urine which does not ferment, absence of steam from the body after a winter bath,

37

Anas ibn Mālik, Al-Mudawwanah al-kubra, Beirut: Al-Maktaba al-‘Asriya, 1999, p. 737 (Book of Regular Divorce, Chapter “On the situation when the wife of the khasī or of the majbūb comes to him with a child”). The title of the short chapter mentions the majbūb, but the body of the chapter does not, thus the chapter does not provide the information about how to handle a claim of paternity against a majbūb. It might have been presumed that the baby would not resemble the majbūb anyway.

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- 14 and finally a voice which is so abnormal that one cannot distinguish whether it is that of a man or a woman. In any case, if the "eunuch of the sun" were a eunuch in our modern sense of the term, perhaps because of an anatomical birth defect, it would not be necessary to resort to such obscure tests in order to identify him.
38

As I mentioned before, Roman jurist Modestinus found that “even those who cannot procreate, such as eunuchs”, could adopt through adrogation.
39

I noted that for him and for Gaius, what prevents the

eunuch from procreating is not necessarily an anatomical defect. What is interesting to my argument regarding eunuchs’ physical intactness is the reason Modestinus cited to justify the eunuch’s right to adopt, which can be interpreted in one of two ways according to the rules of Latin grammar. Alan Watson translated the justification to say: “his bodily defect is no hindrance to him”.
40

If Watson’s translation is

correct, it means that Modestinus assumes the eunuch to have a bodily defect, thus contradicting what his teacher Ulpian had found in the discussion of defects in slaves. But this is not the only translation possible. The phrase used by Modestinus ("nec ei corporale vitium impedimento est") can be translated very well as “he does not have a bodily defect as an impediment.” The preferred translation hinges on whether the third person masculine pronoun in the dative case (ei) is a “dative of the possessor” or a “dative of reference”. There is really no way to tell in this sentence. The dative of the possessor with the verb esse, as in this case, produces the meaning “he has”, but the dative of reference produces the meaning “it is [pick an attribute] for him”. The argument is complicated by the fact that Latin does not mark definite versus indefinite nouns, which makes it is impossible to choose between these interpretations. Watson’s interpretation is supported only by the commonly accepted dictionary definition of eunuch in the modern world. The interpretation that I offer as an alternative is supported by Ulpian’s statement that eunuchs do not have bodily defects. It might also be supported by one of the 38 The Babylonian Talmud, specifically Yebamoth, ibid., sec. 80b, p. 547. Digest of Justinian 1.7.2.1. 40 See footnote 7 above for translated edition by Alan Watson. 41 A similar ambiguity exists in Arabic with the use of the preposition-plus-pronoun lahu with the verb “to be” (kāna): i.e. lā yakun lahu can mean “he does not have (something)” or “(something) is not ____ to/for him”. In Arabic this ambiguity would be resolved based on whether the subject of the verb was a definite noun ("the bodily defect is not a source of impediment for him") or an indefinite noun (“he does not have a bodily defect as a source of impediment”).
39 41

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- 15 provisions of this section, attributed to Javolenus, stating that adoption can only take place between persons who could naturally be father and son.
42

Admittedly, this might not be strictly about procreative

ability; it could also be about the age difference. In fact the law requires the adoptive parent to be at least eighteen years older than the adoptee.
43

If Javolenus’s provision is only about the age difference, then

Javolenus does not necessarily undermine Watson’s translation. On the other hand, Javolenus might mean that the parent must be in a condition in which he could actually procreate, i.e. physically intact, which would undermine Watson’s view. As we saw in the previous discussion of the procreative eunuch in Islamic law, a majbūb, unlike a khasī, is not given a probationary period in which to consummate his marriage, because “there is no point in waiting”.
44

The wife of a majbūb can get an immediate separation. This shows that the khasī is deemed

able to procreate, while the majbūb is deemed incapable of it, which makes it interesting that according to some later scholars the majbūb is defined by penile castration and the khasī by testicular castration. Some change in the meaning of these words must have taken place between the earlier and later Islamic legal scholars. If both the khasī and the majbūb were unable to procreate and the difference between them is really only defined by the organ that is destroyed, as the later legal scholars think, then giving the khasī a year to consummate the marriage seems cruel to the woman, forcing her to stay married to a castrated man. This change seems to have been initiated already the ninth century. I argue that it was done in part by someone making a change to the text of Shafi’ī’s Kitab al-Umm. Without the change that I allege was made to the text, Shafi’ī’s ruling on this issue would be reasonable and exactly the same as Abu Hanifa’s. With the change, Shafi’ī’s ruling is nonsensical. As the text of Shafi’ī’s Kitab al-Umm stands today, the probationary period is only denied to the man “whose penis is cut” (majbūb al-dhakar) – that is, unless enough of the penis is left for him to insert it

42 43

Digest of Justinian 1.7.16. Digest of Justinian 1.7.40.1. 44 Marghīnāni, ibid., p. 127.

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- 16 as far as an average penis can be inserted.
45

But Shafi’ī does not say anything about the case when a

man's testicles are cut off. The situation where the testicles are cut off but the penis is intact is not addressed in so many words, but the text does say that the “khasī whose penis is not cut” is given a probationary period. Now, khasī is a general term that certainly includes castrated eunuchs, although I argue that it includes intact eunuchs as well. So if every khasī with an intact penis is given a probationary period, this implies that a man whose testicles are cut off could be given a probationary period of one year, and if he manages to “consummate” the marriage, so to speak, then his wife is denied the option of a divorce. She will then be stuck in a marriage to a castrated man and will not be able to have children. This obvious injustice to a castrated man’s unwitting bride, and the clear contradiction to Abu Hanifa’s principle that a wife has a right to the possibility of pregnancy, makes the unthinkable plausible: either Shafi’ī himself introduced an intolerable cruelty to women that is not imposed by any prescription in the Qur’an or hadith, or the Kitab al-Umm as we have it has been tampered with after Shafi’ī’s time. In a virtually compulsive manner, the word “penis” is attached to each occurrence of the word “cut” in Shafi’ī’s three numbered provisions that regulate the probationary period for men who are “cut in the penis” and eunuchs who are “not cut in the penis”. If the word “penis” were not used here with the word “cut”, however, these three provisions would be entirely consistent with Abu Hanifa’s principles. In that case, the text would say that the man “who is cut” would be denied a probationary period, while the “khasī who is not cut” would be granted the year’s probation. This would be the reasonable ruling that is consistent with Abu Hanifa as well. But it would also state explicitly what is only implied in the Hanafi code, namely that there is such a thing as a “khasī who is not cut”. And this explicit statement that some khisyān exist who are not cut is what someone is trying to cover up, I allege, by adding the word “penis” to the word “cut” in this text. In the Islamic law codes, there is another context in which the similarities between impotent men and khisyān, and their distinction from the majbūb, come into play. That is on the issue of diya, or compensation paid to the victim of an accidental injury inflicted by the fault of another person, or paid to
45

Shafi’ī, Kitāb al-Umm, p. 136 (Provision No. 15732)

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- 17 the surviving family of a person killed under similar circumstances. Full diya, as if for a killing, is due for the destruction of body parts that are necessary for some aspect of full status as a human being. Thus full diya is required if a body part, of which there is only one in the human body, such as a nose, or the penis, is destroyed. Half diya is required if only one of a pair of body parts, like one of the eyes or ears, is destroyed in the accident. But if the body part was already defective before the accident, then the diya is reduced to a discretionary judgment to be determined by the judge. For example, if the penis was already “paralyzed” before the accident, so that it either would never become erect, or would never relax from erection, then the compensation was determined at the judge’s discretion. According to Shafi’ī’s Kitab al-Umm, full diya is due if a functioning penis, that both becomes erect and becomes flaccid, is destroyed, or even if the glans is cut off.
46

But the Kitab al-Umm never

mentions the diya for the destruction of testicles of a khasī or even of an ordinary man. It is hard to know how to read that omission. The final provision regarding full diya for the penis of the khasī ends with the enigmatic observation that “the two testicles are different from the penis”.
47

One might expect that to

introduce a section on how diya for testicles was applied, but the section ends abruptly at that point. Logically, one would expect a full diya for the destruction of both testicles, and half diya for the destruction of one testicle, but this is never stated, not even for the ordinary man. The reader is left to wonder in what way “the two testicles are different from the penis.” Could it be that some text has been suppressed? There is indeed a section on the diya of the testicles of a hermaphrodite in whom the male characteristics predominate, and for him the diya is full if his testicles are destroyed.
48

So why is there no

section on diya for an ordinary male? One can only speculate, but perhaps there was a section containing provisions about the diya for the testicles of an uncut khasī, and if such a section was there, it would have undermined the attempt to redefine khasī as being cut in the testicles. In such a case, perhaps such a section was removed at the same time as the word penis was added to the verb cut (in

46

Shafi’ī, Kitāb al-Umm, vol. 7, pp. 440 (Book of Diyāt for Accidents, Chapter on the Diya for the Penis), (Provision No. 22830 - 22832). 47 ibid., p. 441 (Provision No. 22843). 48 ibid., p. 443-444 (Provision No. 22848).

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- 18 the section on the probationary period for men whose penises were cut versus impotent men and eunuchs who were not “cut in the penis”). In any case, a shift did take place in the diya for a khasī’s penis between the Kitab al-Umm and the elaboration of the Hanbali school. In Abdallah ibn Ahmad ibn Hanbal’s compilation of questions put to his father, the diya for the penis of a khasī is set at one-third, and for the impotent man at full diya.
49

That

is the only provision in any of the Islamic laws provisions in which the treatment of the khasī differs from that of the impotent man. Moreover, this provision also differs from the full diya for the penis of the khasī in Shafi’ī’s Kitab al-Umm. The Hanbali school is applying a different, more restrictive view of the khasī from the Shafi’ī school. For the Hanbalis the penis of the khasī is already in some way incapacitated and unable to fulfill its purpose even before the injury. It has only one-third of the value of a normal man’s genitalia. It suggests that the khasī as defined by the Hanbali school has already lost his procreative ability before the injury to the penis. He has already lost two-thirds of his genital function, namely his two testicles, two of the three male genital organs.

Impotent with Women Roman law texts do not address the eunuchs’ impotency with women, but Roman and Greek literature is full of references to eunuchs’ incapacity to perform with women. In the Amores, Ovid laments that his married lover’s guard, a eunuch, "would be amenable and accessible to my pleas" for access to her, if the eunuch's "love had ever glowed warm for any female”.
50

Martial has an epigram about a

eunuch and an old man trying unsuccessfully to perform sexually with a girl, who is left praying to Aphrodite to make the old man young and the eunuch a male. woman it is hard not to write satire.
52 51

Juvenal says when a eunuch marries a

Lucian describes a test for whether someone is a eunuch which

49

Abdallah ibn Ahmad ibn Hanbal, Masa’il al-Imam Ahmad ibn Hanbal, tahqīq Zuhair al-Shawish, Beirut: al-Maktab al-Islamiyy, 1981, pp. 413-414. 50 Ovid, Amores, 2.3.5-6. 51 Martial, Epigrams, 11.81. 52 Juvenal, Satires, 1.22.

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- 19 involves see whether he can perform sexually with some female prostitutes.
53

In the context of

widespread Roman bisexual practice, the emphasis on women as the partners with whom the eunuch is unable to perform is telling. And yet, a eunuch is not treated any differently than an ordinary man in Roman law, because his impotence with women is not physical and absolute. If the texts of the Hanāfi, Maliki and Shafi’ī law codes show that the khasī in the 8 to 9 century was physically intact and potentially procreative, but simply congenitally impotent, another text from the Kitab al-Umm may indicate that his impotence was specifically with women. In the section on fixed compensation for injuries to the penis, full compensation is ordered for cutting off the penises of “the exhausted old man,” the “khasī” and the young boy.
54 th th

By contrast, destroying the penis of a paralyzed

man whose penis never gets hard or of a man who suffers from permanent priapism only results in a discretionary judgment.
55

The exhausted old man is described as one who does not (any longer?)

approach women, but whose penis used to function properly, becoming erect and going soft. The young boy is not characterized in further detail. But between the penis of the exhausted old man and penis of the young boy, we find, in a dual construction, “the penis of the khasī and of whoever never approached a woman at all”. I read this as an assimilation of khisyān to the men who never approached a woman at all, who are being contrasted with the exhausted old men who do not now approach women. The penis of the khasī obviously must become erect under some circumstances, just not ever with women. If it were true that the khasī’s penis never became erect at all, then he would be treated like the paralytic; that is, in case of a penile injury, he would receive a discretionary judgment like the paralytic, rather than the full compensation that is ordered for the khasī. Of course, we know from the laws allowing the khasī a year to perform sexually with a wife that it was not unheard-of for a khasī to have sex with a woman. But we also saw that “mostly” he did not have children.
56

So to sum up, according to Islamic law, the khasī is

53 54

Lucian, The Eunuch, 12. Shafi’ī, Kitāb al-Umm, vol. 7, p. 440 (Book of Diyāt for Accidents, Chapter on the Diya for the Penis) (Provision No. 22832). 55 ibid., p. 441 (Provision No. 22836). 56 See note 39.

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- 20 assumed able to get an erection and physically to procreate, but mostly he does not procreate, and he is assimilated to a physically intact impotent man and a man “who never approached a woman at all”.

Change in Meaning The fourth founder Ibn Hanbal does not mention the word khasī at all in reference to the probationary period for marital consummation.
57

In that context, he only talks about the impotent man and

the man who has been cut. But in another context explaining the men mentioned in the Qur’an (verse 24:31) who “lack the defining skill of males” and are therefore allowed to see women unveiled, Ibn Hanbal denies that the khasī has this privilege, although he says that those who are allowed to see women are those whose penis does not become erect.
58

If Ibn Hanbal does not allow a khasī to see

women unveiled, then he is implying that a khasī can get erections with women, in which case what defines a khasī is a lack of testicles. I would argue that Ibn Hanbal’s intention here is twofold: first, to separate powerful court eunuchs from the intimate access to the caliph’s family they have enjoyed in the caliphal court, and second, to redefine intact but congenitally impotent men no longer as eunuchs but rather as males, for reasons I will explain below. In any case, the later legal scholars in the Hanbali and Shafi’ī traditions show that at least those schools came to think of the khasī exclusively as a castrated man. For instance, the 14 century Shafi’ī scholar Al-Subki defines the khasī as having the testicles cut off and the majbūb as having the penis cut
th

57

Three late 9 century compilations of questions put to Ibn Hanbal, compiled by his son Abdallah ibn Ahmad ibn Hanbal and his companions Abu Da’ud al-Sijistani and Ishaq ibn Mansur al-Kausaj, use only the word impotent man in relation to the question of the unconsummated marriage, and none of them mention the khasī. Here we are seeing the start of the effort by the Hanbali school to suppress the notion of the procreative, physically intact eunuch, and subsume him under the category of the impotent man. For all three compilations with respect to the matters relating to marriage, there is an English translation by Susan Spectorsky, Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rāhwayh, Austin: University of Texas Press, 1993, pp. 79, 113, 176-177, 215, 233234. Ahmad Ibn Hanbal, Ahkām an-Nisā’, Cairo: al-Fār q al- adīthah lil- ibā ah wa-al-Nashr, 2006, pp. 7985.

th

58

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- 21 off. These later scholars have to make the distinction this way because the earliest legal texts distinguish between the eunuch (khasī) and the cut (majbūb) and treat them differently under the law, and yet the later scholars want all eunuchs to be defined by cutting. In this they are merely following the strategy put in place by Ibn Hanbal, to deny that there is such a thing as an intact eunuch. And yet, in the text of Shafi’ī’s Kitab al-Umm as we currently have it, the word penis is appended to the word cut in order to produce the meaning “cut in the penis”.
60 59

The word jabba is unable by itself to convey the meaning that
th

the penis is what is being cut. And as noted above (footnote 18), the 8 century lexicon Kitab al-‘Ain mentions under the verb jabba only the cutting of the testicles, and not the cutting of the penis. The most natural interpretation of the word majbūb in the early codes is that it refers to any anatomical operation that prevents procreation, which could be a penile or testicular castration. The interpretation of the majbūb as cut in the penis and not the testicles represents a later narrowing of the meaning of majbūb. The 10 century Hanbali commentator Al-Khiraqi is not necessarily adhering to that meaning yet, when he addresses the question of the probationary period. He in fact titles his section on this question “Chapter on the Probationary Period for the Impotent Man and the Uncut Eunuch” (al-khasī ghair ilmajbūb).
61 th

Then he proceeds to offer a conventional view that a cut man is not given a probationary

period while an impotent man is given one. The word khasī appears only in the title, not in the body of the chapter. Whether this indicates a fundamental similarity between the impotent man and the uncut eunuch for al-Khiraqi, or whether al-Khiraqi has promised in the title to address two fundamentally different cases and only delivered on one, cannot be determined. But the mention of the “uncut eunuch” in Al-Khiraqi’s title created a certain embarrassment for the late 12 century commentator Ibn Qudama.
th 62

To him it

implied that the uncut eunuch was to be treated like an impotent man, even though for Ibn Qudama, every khasī was by definition castrated, so an “uncut eunuch” could only mean a eunuch whose penis was not cut. Ibn Qudama must justify the ruling that a woman cannot get a divorce from a castrated man

Taj al-Dīn al-Subkī, Mu‘īd al-ni‘am wa mubīd al-niqam, Cairo: Maktabat al-Khānjī, 1983, p. 39. Shafi’ī, Kitāb al-Umm, (Provision Nos. 15729 – 15732) 61 Khiraqi, Mukhtasar al-Khiraqi, ta’lif Abi al-Qasim ibn al-Husayn al-Khiraqi, n.l.: n.p., 1964, pp. 144-145. 62 Muwaffaq al-Din Ibn Qudama, Mughni, Cairo: Hajr, 1992, p. 85.
60

59

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- 22 as long as his penis is intact. His solution is to deny that a wife has the right to the possibility of pregnancy. The only benefits she gets from marriage are financial support and the ability to have sex lawfully. With this in mind, Ibn Qudama declares that a castrated husband is an even more skilled lover in that he never ejaculates, so he never slackens in his lovemaking as an intact man does after orgasm. One can imagine what small consolation this would be for a woman who hoped for children and was dismayed to discover her new husband was castrated. Ibn Qudama is in an unenviable position in that the meaning of khasī as a castrated man has been so far solidified by the late 12 century that he cannot conceive of a physically intact “uncut eunuch,” even when he encounters that very phrase in his source. He is compelled to find grounds for an intolerable injustice apparently inscribed in the authoritative sources of Islamic law. The change in the meaning of eunuch is not only made in the Islamic context, but also in the Christian Byzantine empire and is reflected in the new legal code of Byzantine emperor Leo VI, who ruled in the late 9 century, contemporaneous with the establishment of the Hanbali law school. In Leo’s code, he proceeded from the stated assumption that all eunuchs were castrated by the lethal acts of human beings, and he denied that nature had anything to do with the creation of eunuchs.
63 th th

Because to him

eunuchs were nonprocreative by definition, he forbade them to marry on pain of the punishment for fornication, since their anatomical defect prevented them from fulfilling the procreative purpose of marriage. Inasmuch as Leo VI disregards the intact, procreative eunuchs of the earlier Roman law, this is a change from the law of the Roman Civil Code, which recognized marriage for uncastrated eunuchs and denied it to castrated eunuchs.

Historical Motive

63

New Constitutions of Leo VI, Constitution 26 (Eunuchs Can Adopt), 27 (All Persons are Equally Permitted to Adopt), 98 (Concerning the Penalty to be Inflicted Upon Eunuchs if They Should Marry). Translated by Samuel P. Scott, The Civil law, including the Twelve Tables: the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo, New York: AMS Press, 1973, vol. 17, p. 229-231, 283-285.

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- 23 At this point, having partly made the case that a change in the meaning of terms has taken place, it might be useful to propose a reason that might have motivated such a change. The thesis of this paper does not include assigning a motive, but rather I am only aiming to prove that procreative, intact eunuchs were part of law codes in a range of societies and that there has been a change away from recognizing this category. And yet, it might help to understand this change, if we could see what purpose such a change might have been intended to serve. I argue that the change in use of terms for eunuch in fourth century Christian Roman Empire and in the ninth century Abbasid Caliphate is related to and follows upon conflicts between court bureaucracies and non-state religious authorities, conflicts that remarkably and perhaps not coincidentally revolved around very similar doctrinal issues about the nature of God and of the central physical symbols of God’s will. I am referring to the controversies over the createdness or eternality of Jesus in Christianity and of the Qur’an in Islam. In both instances, a conflict arose between an imperial court, which argued for the created nature of the central symbol of the religion, and non-state religious authorities who insisted that that symbol was co-eternal with the Creator and uncreated like Him. Since the Arian controversy over the nature of Jesus erupted five hundred years before the controversy over the nature of the Qur’an, and could be viewed as providing a template for the later case, I will address first what the Arian controversy had to do with eunuchs and how redefining the status of procreative, intact eunuchs served the purposes of the non-state religious authorities. Eunuchs were recognized as proper servants in imperial courts going back to the Code of Hammurabi. Fifth century Greek historian Xenophon offers an explanation in The Education of Cyrus for why an imperial monarch might want to staff his palace and bodyguard mostly with eunuchs: they would not have progeny of their own with all the conflicting interests and threats to the emperor’s safety that might result if a potential dynasty founder had free access to the emperor’s sleeping body.
64

Eunuchs are

identified as powerful factors in Roman imperial court life from as early as the reign of Elagabalus in the first two decades of the 3 century. When this emperor’s successor Alexander Severus came to power,
64 rd

Xenophon, The Education of Cyrus, 7.5.

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- 24 his first order of business was to reform the court life that characterized the previous reign, also by reducing the staff of eunuchs who had gained a reputation – whether or not deserved – for using their proximity to the emperor as a means of lining their pockets through the extortion of bribes from people who wanted to have the emperor’s ear or through the sale of imperial secrets, according to the Life of Alexander Severus in the Historia Augusta (45.4). Nonetheless, by the time Constantine I became emperor nearly a century later, eunuchs had again become a very important and powerful element of the court bureaucracy. In addition to their role as palace servants, eunuchs had also traditionally played a role as priests in pagan religious cults. Among many other examples, the late 1 century BCE Greek historian Strabo tells us that the temples of the city of Ephesus were constantly on the lookout for eunuchs to serve as priests.
65 st

The cult of the Great Mother, popular throughout the Roman empire from the 2

nd

century BCE,

was entirely run by eunuch priests, including both castrated men and “effeminate” men, according to as late a witness as Augustine.
66

And even within Christianity, eunuchs played a prominent role in various

movements, most of which came to be viewed as heresies. The main combatant against the Arian doctrine, who was often persecuted by the court for his opposition to Arianism, identified eunuchs as its supporters.
67

He said they refused to acknowledge that Jesus was the begotten Son of God because of

eunuchs’ own “fruitless souls”. They denied to God that status as a father that they themselves were deprived of by nature. Given the two sources of power ascribed to eunuchs in ancient society, namely proximity to powerful rulers and an authoritative voice in spiritual matters, they could be valuable allies to those they agreed with on religious questions, or menacing enemies whom they opposed. Since their power depended on their status as eunuchs, the criteria used to define a eunuch could be used as an effective
65

Strabo, Geography 14.1.23

66

Augustine, City of God, 7.26; Arthur Darby Nock, “Eunuchs and Ancient Religion,” Archiv für Religionswissenschaft 23 (1925): 25-33; Will Roscoe, “Priests of the Goddess: Gender Transgression in Ancient Religion,” History of Religions 35 (1996): 195-230; Richard Ganschinietz, "Kombabus", Pauly-Wissowa Realencyclopaedie der Classichen Altertumswissenschaft, Stuttgart: Metzler, 1958. 67 Athanasius, “History of the Arians,” Historical Tracts of Saint Athanasius, Oxford: J.H. Parker, 1843, §§35-38.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 25 tool to exclude certain individuals from this office and place others under a cloud. The fact that three types of eunuchs are defined in Matthew 19:12, including “eunuchs who are born so from their mother’s womb,” gave religious authorities the power to interpret what defined a natural eunuch. Most Christian interpreters in earlier centuries had described the born eunuchs as having a cold or frigid nature,
68

and

one heretical group said born eunuchs were those men who “from birth have a nature to turn away from women”.
69

Even in the fourth century, Jerome described born eunuchs as frigid
71

70

and Gregory of

Nazianzus

said they were chaste by nature, for which they could claim no more merit than water could

claim for falling, or fire for burning, or snow for being cold. All of these qualities were assigned by God and existed regardless of any will on the part of the possessor of them. One mid-to-late 4 century Christian author, Epiphanius of Salamis, stood out from the others of his own or previous eras in that he defined born eunuchs as having desires for sex but lacking the anatomical parts to carry them out due to a birth defect.
72 th

None of the other church leaders had ever

mentioned any anatomical defects in born eunuchs. Thus for Epiphanius, anatomically whole men were not eunuchs. An astrology writer of the early-to-mid 4 century, Firmicus Maternus, who converted to Christianity sometime during the reign of Constantine’s sons, referred to eunuchs as “filthy lewd passives”, and he adopted the Aristotelian practice of seeing eunuchs as a form of defective male.
73 th

For

most other writers not in the Aristotelian tradition, males were one thing and eunuchs were another. To view eunuchs as males, and not as a third or neutral gender, would have ominous consequences when combined with the general prohibition of sexual penetration of males. After all, a third role traditionally played by eunuchs was that of a passive sex partner for men. Terence, Philo, Josephus, Quintilian, Suetonius, Petronius, Quintus Curtius, Dio Cassius, Aelian, and 68 Walter Bauer, “Matth. 19.12 und die alten Christen,” Neutestamentliche Studien Georg Heinrici zu seinem 70. Geburtstag (14. März 1914) dargebracht, Leipzig: J.C. Hinrick, 1914, pp. 235-244. 69 Clement of Alexandria, Miscellanies, 3.1. 70 Jerome, Commentary on Matthew, 3.19. 71 Gregory of Nazianzus, Oration 37. 72 Epiphanius of Salamis, The Panarion of Epiphanius of Salamis, translated by Frank Williams, New York: E.J. Brill, 1987, Haer. 58.3.2. 73 Firmicus Maternus, Mathesis, 3.9.1; Aristotle, Generation of Animals, 4.1.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 26 many more writers attest to the custom of men using eunuchs as sexual partners.
74

The Epitome de

Caesaribus, a late-fourth-century synopsis of the lives of emperors from Augustus to Theodosius, attests that the Arian emperor Constantius II, who was otherwise described by historians as entirely under the thumb of his eunuch grand chamberlain Eusebius, was sexually devoted “entirely to his eunuchs, wives and courtiers, and never was suspected of any transverse or unjust lust”.
75

For the pagan author of the

Epitome, sex with a eunuch was not against any law. But according to a law passed by that very same Constantius II, sex in which a male played the passive role should bring down “exquisite punishments upon him”.
76

There is no contradiction here as long as a eunuch is not defined as a male.

Therefore, what happens when anatomically whole eunuchs are excluded from the eunuch category, or when eunuchs themselves come to be defined as male, is that passive behavior on their part goes from being lawful to being a capital crime. Eunuchs are still apparently exempt from the prohibition against passive behavior, if the Epitome author’s statement about Constantius II’s restriction of his sex life to lawful congress with this eunuchs, wives and courtiers reflects a common pagan view. But another law passed later in the century would not provide such an exemption for eunuchs. In 390, Emperor Theodosius passed a law, possibly under the influence of Ambrose the bishop of Milan, in which anyone who habitually caused the “male body” to be subjected to sexual penetration was to be burned at the stake in a public spectacle.
77

According to Aristotle’s view, a eunuch was defective as a male because he saw maleness as a composite characteristic, made up of a capacity (δυναμις) and a purpose (λογος) to procreate in the body of another person; the body part (μοριον) was merely the tool required to put the capacity to use and

Terence, Eunuchus, line 479; Philo, Special Laws, 3.37-42; Josephus, Antiquities of the Jews, 16.8.1; Quintilian, Institutes of Oratory, 5.12.19; Suetonius, Titus, 7; Petronius, Satyricon; Quintus Curtius, History of Alexander, 6.6.8; Dio Cassius, Roman History, 67.2.3; Aelian, Historical Miscellany, 12.1. 75 Epitome de Caesaribus, 42.19. The Epitome and its authorship is described by Jörg A. Schlumberger, Die Epitome de Caesaribus: Untersuchungen zur heidnischen Geschichtsschreibung des 4. Jahrhunderts n. Chr., Munich: C.H. Beck, 1974. 76 Code of Theodosius, 9.7.3. 77 Code of Theodosius, 9.7.6.

74

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- 27 fulfill the purpose.
78

The penis and testicles served like any organ to enable the exercise of the capacity,

like the eye serves to exercise the capacity of sight. Yet one can have eyes and still be blind. Some people such as eunuchs were nonprocreative by nature and thus fell short of full male status. Under Theodosius’s new law of 390, however, it is not the male gender of the passive partner as a whole person, body and soul, that makes passive behavior on his part unlawful, but rather it is the maleness of his body alone that makes the passive partner an outlaw. Anatomically whole eunuchs who certainly had male bodies but were never previously considered male would now be deemed violators of pervasive ancient prohibitions against male sexual passivity, including the injunctions of Leviticus 18:22 and 20:13, since what mattered henceforth was not the maleness of the person as a whole, but the only maleness of his body. Thus, the redefinition of the category of eunuchs served to outlaw a common sexual practice of eunuchs, and one that attached them closely to the emperor. Eunuchs who attempted to exert power against the orthodox church would be opening themselves up to a charge of male passivity that might get them burned at the stake. A crisis developed in Islam in the ninth that weirdly paralleled the Arian controversy in its themes, and, I would argue, in its impact on the conception of the eunuch category.
79

The Abbasid caliphs from

Al-Ma’mun to Al-Wathiq, assuming the role of primary interpreters of Islamic doctrine, required their subjects to sign on to the notion that the Qur’an was a created thing and not co-eternal with God. According to pious legends, the only man who defended the Qur’an’s eternal status was Ibn Hanbal, and he was imprisoned and flogged to the point of unconsciousness for his principled stance. Ibn Hanbal survived the period of the Mihna or Inquisition, to see his doctrine of the uncreated Qur’an eventually prevail.
78 79

Aristotle, Generation of Animals, 2.2. th An account of the early 9 century conflict between the Hanafi and the Hanbali schools, in particular in relation to the controversy over the created or uncreated nature of the Qur’an, is provided by Christopher th th Melchert, The Formation of the Sunni Schools of Law, 9 -10 centuries C.E., Leiden: Brill, 1997, pp. 113. The controversy over the Qur’an’s status and the role that Ibn Hanbal played in the controversy is also described in Ira M. Lapidus, A History of Islamic Societies, second edition, Cambridge: Cambridge University Press, 2002, pp. 101-102.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 28 How does this relate to the definition of eunuchs? Eunuchs were among the primary managers of the caliphal court, as can be seen from a reading of Mas’udi’s Meadows of Gold.
80

As noted above,

eunuchs had a history of being granted credibility when it came to religious matters, and could be very opinionated when it came to defending the supreme incommensurability of God. The “heresy of eunuchs” that Athanasius had opposed so vigorously in the 4 century was vindicated in the Qur’anic doctrine on the nature of Jesus. So it is not a totally unfounded hypothesis that court eunuchs enthusiastically supported the doctrine of the created Qur’an, which would make them the enemies of Ibn Hanbal. It was then Ibn Hanbal’s school that retaliated by defining eunuch in a restrictive manner, limiting the use of the term and the privileges it entailed, so that it could only be applied to physically castrated men. Anatomically whole eunuchs were redefined as impotent men, which made them open to the accusation of committing the “act of the people of Lot” if they had sex, just as they had been made open to the same accusation in the fourth century by the legal formula of the “male body.” The redefinition of the eunuch category, that I claim happened in the 4th and 9th centuries, was reiterated for a secular society in the 18th century. Arguing in his Traité des Eunuques of 1707 against the right of eunuchs to marry, the Huguenot jurist Charles Ancillon separated out the eunuchs who could marry under Roman law as not really being eunuchs. Although he recognizes that under Roman law the word spado was deemed to be a general category encompassing castrated men who could not marry and other spadones who could, Ancillon criticizes the Roman jurists for what he considers an illogical use of terminology. As far as Ancillon is concerned, spadones “are not eunuchs, since they can be returned to a state of perfection, either by the virtue of Nature or by the aid of Art”.
81 th

So Ancillon does not

understand how the jurists “could include under the name of spado, which is not a eunuch properly speaking, those who really and in fact are eunuchs and are without hope of return.” Ancillon seems to know better than the Romans what the word spado really means!

80

Mas’udi, The Meadows of Gold: The Abbasids, translated by Paul Lunde and Caroline Stone, London: Kegan Paul International, 1989, pp. 72-73, 345-346, 352-354. 81 Charles Ancillon, Traité des Eunuques, n.l.: n.p., 1707, p. 13. A scanned copy of a 1718 English translation of Ancillon’s book titled Eunuchism Display’d is available online, and the section I have just been citing is on pp. 17-18 of that book.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 29 Later in the 18th century, in the Encyclopédie article on “Célibat”, Dénis Diderot speaks of natural eunuchs who have existed at all times and had often been deemed to have received their natural celibate status by divine agency. Diderot traces the development of pagan priestly celibacy from an original source in “those happy, sage temperaments, whom nature exempts in practice from the great rule of multiplication [i.e. propagation]; they have existed at all times. Our authors give them debasing titles; the Orientals in contrast call them ‘eunuchs of the sun, eunuchs of the sky, made by the hand of God,’ honorable qualities, which ought not only to console them for the misfortune of their condition, but even authorize them before God and before men to boast of [this condition], as a special grace that releases them from a large part of the solicitudes of life and transports them all at once into the middle of the path of virtue…This type of life [i.e. celibacy] no doubt owes its origin to them, and perhaps its name; for the Greeks called the invalids I am talking about κολοβοι, which is not far from coelibes.” In contrast, in the Encyclopédie article on “Eunuques”, the doctrinaire priest Abbé Edme-François Mallet, true to the long-standing practice of the Catholic Church, treats the word eunuch as a synonym for a castrated man. Jean-Jacques Rousseau, a sometime devoted Catholic and great believer in the sanctifying power of heterosexual love, with his typical fervor issues a call for the castration of unmanly men, apparently including a group he acknowledges to be natural eunuchs. He mentioned eunuchs “who are made by nature … those crowds of spineless men whose hearts it [nature] has mutilated” and who alone among men are suited to trades like “sewing and the needle trades”.
82

He continues: “Every weak,

delicate and fearful man is condemned by nature to a sedentary life. He is made to live with women or in their manner.” Still, for Rousseau, the “true eunuchs” are castrated men; moreover, he feels that any men who want to take jobs that are not suited to the male sex, such as being a tailor, should be “reduced to

82

Jean Jacques Rousseau, Emile, or On Education, Introduction, translation and notes by Allan Bloom, n.l.: Basic Books, 1979, p. 199.

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- 30 this condition” of being castrated, seeing as “their choice proclaims nature’s mistake” in making them men.
83

Conclusion In this essay, I hope I have shown that a category of physically intact, procreative eunuchs existed in Roman, Talmudic and Islamic law, and that if the category no longer exists, it is due in part to efforts to redefine the eunuch category in order to make natural eunuchs be viewed as males so that they would be subject to the penalties for sexual penetration of males.

83

ibid., p. 200.

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- 31 BIBLIOGRAPHY

Primary Sources

Aelian. Historical Miscellany. Ancillon, Charles. Traité des Eunuques. n.l.: n.p., 1707 Apostolic Canons Aristotle. Generation of Animals. Athanasius. “History of the Arians,” Historical Tracts of Saint Athanasius, Oxford: J.H. Parker, 1843 Augustine. City of God. The Babylonian Laws. Edited with translation and commentary by G.R. Driver and John C. Miles. 2 vols. Oxford: Clarendon Press, 1952 The Babylonian Talmud. Translated into English with notes, glossary and indices under the editorship of Rabbi Dr. I. Epstein. London: Soncino, 1936 The Civil law, including the Twelve Tables: the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo. Translated from the original Latin, edited, and compared with all accessible systems of jurisprudence ancient and modern, by S. P. Scott. New York: AMS Press, 1973 Clement of Alexandria. Miscellanies. The Code of Theodosius. The Digest of Justinian. Latin text edited by Theodor Mommsen with the aid of Paul Krueger, English translation edited by Alan Watson, 4 volumes. Philadelphia: University of Pennsylvania Press, 1985 Dio Cassius. Roman History. Epiphanius of Salamis. The Panarion of Epiphanius of Salamis. Translated by Frank Williams. New York: E.J. Brill, 1987 Firmicus Maternus. Mathesis. Gaius. Commentaries of Gaius on the Roman Law, translated by Frederick Tomkins and William George Lemon. London: Butterworths, 1869 Gregory of Nazianzus. Orations.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 32 Ibn Hanbal, Abdallah ibn Ahmad. Masa’il al-Imam Ahmad ibn Hanbal. tahqīq Zuhair al-Shawish. Beirut: al-Maktab al-Islamiyy, 1981 Ibn Hanbal, Ahmad. Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rāhwayh. Translated with introduction and notes by Susan A. Spectorsky. Austin: University of Texas Press, 1993 Ibn Hanbal, Ahmad. Ahkām an-Nisā’. Cairo: al-Fār q al- adīthah lil- ibā ah wa-al-Nashr, 2006 Ibn Qudama, Muwaffaq al-Din. Mughni, Cairo: Hajr, 1992 Jerome. Commentary on Matthew. Josephus. Antiquities of the Jews. Juvenal. Satires. Khalīl ibn Ahmad. Kitāb al-‘Ain. Beirut : Dār I yā al-Turāth al- Arabī, 2001. Khiraqi, Umar ibn al-Husain. Mukhtasar. n.l.: n.p., 1964 Lucian, The Eunuch. Maimonides. The Code of Maimonides, Book V, The Book of Holiness. Translated from the Hebrew by Louis I. Rabinowitz and Philip Grossman. New Haven: Yale University Press, 1965 Mālik, Anas ibn. Al-Mudawwanah al-kubra. Beirut: Al-Maktaba al-‘Asriya, 1999 Malik, Anas ibn. Muwattā’. Cairo, 1967 Manu. The Laws of Manu. With an introduction and notes, translated by Wendy Doniger with Brian K. Smith. New York: Penguin, 1991 Marghīnāni, Ali ibn Abi Bakr. The Hedaya or Guide: A Commentary on the Mussulman Laws, translated by Charles Hamilton. London: W.H. Allen, 1870 Martial. Epigrams. Mas’udi. The Meadows of Gold: The Abbasids, translated by Paul Lunde and Caroline Stone. London: Kegan Paul International, 1989 Ovid. Amores. Petronius. Satyricon. Philo. Special Laws. Quintilian. Institutes of Oratory. Quintus Curtius. History of Alexander.

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Mark Brustman aka Faris Malik, http://www.borneunuchs.org

- 33 Rousseau, Jean-Jacques. Emile, or On Education. Introduction, translation and notes by Allan Bloom, n.l.: Basic Books, 1979 Sextus Aurelius Victor (attributed). Epitome de Caesaribus. Shafi’ī. Kitāb al-Umm. Beirut: Dar Qutaybah, 1996 Strabo. Geography. Subkī, Taj al-Dīn. Mu‘īd al-ni‘am wa mubīd al-niqam. Cairo: Maktabat al-Khānjī, 1983 Suetonius. The Twelve Caesars. Terence. Eunuchus. Xenophon. The Education of Cyrus.

Secondary Sources Bauer, Walter. “Matth. 19.12 und die alten Christen”. Neutestamentliche Studien Georg Heinrici zu seinem 70. Geburtstag (14. März 1914) dargebracht. Leipzig: J.C. Hinrick, 1914 Doniger, Wendy. The Laws of Manu. With an introduction and notes, translated by Wendy Doniger with Brian K. Smith. New York: Penguin, 1991 Driver, G.R. and John C. Miles. The Babylonian Laws. 2 vols. Oxford: Clarendon Press, 1952 Ganschinietz, Richard. "Kombabus". Pauly-Wissowa Realencyclopaedie der Classichen Altertumswissenschaft. Stuttgart: Metzler, 1958 Guilland, Rodolphe. “Les Eunuques dans l’Empire Byzantin: Étude de titulature et de prosopographie byzantines”. Études Byzantines 1 (1943): 197-238 Hug, Arnold. “Eunuchen”. Pauly-Wissowa Real-Encyclopädie der classischen Altertumswissenschaft, Supplement III. Stuttgart: Metzler, 1958 Lapidus, Ira M. A History of Islamic Societies. Second edition. Cambridge: Cambridge University Press, 2002 Marmon, Shaun. Eunuchs and Sacred Boundaries in Islamic Society. New York: Oxford University Press, 1995 McGrath, Aidan, O.F.M. A Controversy Concerning Male Impotence. Rome: Editrice Pontificia Università Gregoriana, 1988 Melchert, Christopher. The Formation of the Sunni Schools of Law, 9 -10 centuries C.E. Leiden: Brill, 1997
th th

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- 34 Musallam, B.F. Sex and Society in Islam: Birth Control Before the Nineteenth Century. Cambridge: Cambridge University Press, 1983 Nock, Arthur Darby. “Eunuchs and Ancient Religion”. Archiv für Religionswissenschaft 23 (1925): 25-33 Ringrose, Kathryn. “Eunuchs in Historical Perspective”. History Compass 5/2 (2007): 495-506 Ringrose, Kathryn. “Living in the Shadows: Eunuchs and Gender in Byzantium”. Gilbert Herdt, ed., Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History. New York: Zone Books, 1993, pp. 85-109 Ringrose, Kathryn. “Perceiving Byzantine Eunuchs Through Modern Medicine”. Published as a PDF on the Internet Ringrose, Kathryn. The Perfect Servant: Eunuchs and the Social Construction of Gender in Byzantium. Chicago: University of Chicago, 2003. Roscoe, Will. “Priests of the Goddess: Gender Transgression in Ancient Religion”. History of Religions 35 (1996): 195-230 Schlumberger, Jörg A. Die Epitome de Caesaribus: Untersuchungen zur heidnischen Geschichtsschreibung des 4. Jahrhunderts n. Chr. Munich: C.H. Beck, 1974 Scholz, Piotr O. Eunuchs and Castrati: A Cultural History. Translated by John Broadwin and Shelley Frisch. Princeton: Markus Wiener, 2001 Stevenson, Walter. “The Rise of Eunuchs in Greco-Roman Antiquity”. Journal of the History of Sexuality 5/4 (1995): 495-511

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