Examining the Rational Foundations of Gender-Based Legal Rulings in Qisas (Retaliatory Punishment) for Life and Limb in Islamic Law

Abstract

One of the significant legal challenges pertains to the status of intersex individuals (khuntha) in penal matters, and various issues have been raised in this regard. Among them is the question of how punishment should be determined if an intersex individual commits a criminal offense. The fundamental question posed in this article is: What is the ruling of qisas (retaliation) concerning intersex individuals in Islam? and What is the method for determining the dominant gender for applying qisas penalties? This study employs a descriptive-analytical method. In Islamic law, gender plays a crucial role in determining qisas punishment. Concerning the status of intersex individuals (khuntha), Islamic jurisprudence refers to these individuals under the title khuntha and classifies them into two general categories: khuntha wadhih (discernible) and khuntha mushkil (indiscernible). Jurisprudential rulings, including those related to qisas, are also classified based on these two categories. With regard to khuntha mushkil, there is relatively little controversy among Islamic jurists. The more critical and debated jurisprudential discussion concerns khuntha ghayr mushkil (non-problematic intersex individuals), which is primarily addressed in the context of inheritance law. Accordingly, it is essential to base rulings on the dominant gender. Thus, qisas rulings for khuntha ghayr mushkil or khuntha wadhih—individuals with a discernible gender tendency toward male or female—must be rendered based on that dominant gender. This means that the prevailing gender in the intersex individual must be identified, and qisas should be applied accordingly. The determination of dominant gender can be referred to medical science and forensic medicine. However, this does not negate the necessity of codified legal provisions in this area. Given the existing gaps in both jurisprudential and legal discourses, it is imperative that the legislator formulates efficient and explicit statutes in this regard.