Definition
In historical legal usage, persons in whom the anatomical characteristics of both sexes appear in the same individual. Classical common law and civil law traditions addressed the status of such persons by directing that legal sex be determined by whichever set of sexual characteristics was found to predominate. This rule governed consequential questions of legal capacity, inheritance rights, and civic status that were tied to sex classification under the law.
The term is now largely superseded in medical, legal, and general usage by the clinical term intersex, which describes a range of conditions in which a person's reproductive or sexual anatomy, chromosomes, or hormones do not fit typical definitions of male or female. Modern legal frameworks address such persons under statutory and constitutional provisions governing sex, gender identity, and civil rights rather than through the older common law rule of predominance.
Common Language
Modern common usage (Wiktionary): Plural of hermaphrodite; a person or organism having both male and female reproductive organs or characteristics.
Historical common usage (Webster's 1913): A human being or animal uniting in itself the parts proper to both sexes; one in whom the characteristics of both sexes are combined.
The common and legal meanings align closely at the definitional level, but the gap lies in consequence. In ordinary language, the term is descriptive. In historical legal usage, it triggered a formal adjudicative process — a determination of which sex "prevailed" — with binding legal effects on the person's rights, status, and capacity. That operative dimension is entirely absent from the common meaning.
Common Confusion
Hermaphrodites (historical legal term) should not be conflated with the modern legal and medical category of intersex, which encompasses a broader spectrum of conditions and is embedded in a contemporary rights-based framework rather than a binary classification rule. Researchers encountering the term in historical sources should resist reading modern intersex law backward into those materials; the older doctrine was concerned with assigning a definitive legal sex, not with recognizing a third or indeterminate category.
Why It Matters in Research
This term is almost exclusively a historical artifact in legal sources. Researchers will encounter it in older common law treatises, civil law commentaries, and early American legal dictionaries, but it will rarely appear in modern statutory text or judicial opinions except in historical analysis or in cases examining the evolution of sex classification law.
Several navigational points are essential:
First, the rule of predominance — that legal sex follows whichever characteristics prevail — was carried from Roman and civil law sources through Coke and into Anglo-American common law. When tracing the lineage of sex classification rules, this is the doctrinal origin point. Bouvier's entry signals the civil law parallel explicitly, pointing to Domat alongside Coke, which is useful for researchers working on comparative or historical projects.
Second, Bouvier's entry is incomplete as printed; the text cuts off mid-sentence ("both ovaries and test—"), suggesting the full entry in the original edition contained additional medical and legal detail. Researchers relying on digitized or abridged versions of Bouvier should seek the complete text.
Third, this term connects forward to an active area of contemporary law. Modern litigation and legislation on intersex rights, gender marker changes, birth certificate amendment, and anti-discrimination protections all grapple with the definitional foundations laid by the historical common law treatment. A researcher tracing the legal history of sex classification must pass through this term.
Fourth, the term carries significant dignity concerns that affect how historical sources should be described and quoted in modern scholarly or practice contexts. Awareness of this shift is part of working responsibly with historical legal materials.
Historical Dictionary Support
Bouvier's Law Dictionary provides the primary English-language legal dictionary treatment. Bouvier synthesizes two authorities: Coke on Littleton (Co. Litt. 2.7), the foundational common law source, and Domat's Lois Civiles (liv. 1, t. 2, s. 1, n. 9), representing the French civil law tradition. The convergence of these sources on the same rule — that legal sex follows the predominant characteristics — reflects how settled the doctrine was across both common law and civil law systems by the time of Bouvier's writing.
What historical dictionaries do not address: the possibility of legal status for persons in whom neither sex clearly predominates, the procedural mechanics of how predominance was determined, or any concept resembling what we would now call gender identity. The rule assumed a determinable biological answer to every case. Modern legal developments have exposed that assumption as both medically and legally untenable.
No other Law Mind shelf sources (Black's, Burrill, Tomlin's, etc.) are indicated as providing entries for this term, which itself is informative — the term received more sustained treatment in the civil law tradition than in later common law dictionaries.
Jurisdictional Note
The historical common law rule of predominance applied across English-speaking jurisdictions. Today, treatment of intersex persons in legal contexts varies significantly: some jurisdictions have enacted specific protections for intersex individuals, others address the question through broader sex or gender identity statutes, and a minority retain binary sex classification systems with limited administrative flexibility. International variation is substantial.