‘This Head, These Limbs’

Some years ago, a student brought me an image of a painting in the style of the Italian Renaissance. He had no knowledge of its provenance, but thought it would intrigue me, given my work on the history of racial representations. It depicts two men with halos—saints? holy men? priests?—presiding over the amputation of a leg apparently removed from an apparently dead Black man and attached to the body of an apparently white figure, whom one may surmise is still living, as one of the pontiffs seems to be taking a pulse. It is a religious depiction of some sort, obviously Christian. Having been raised within a loose version of that tradition, I ascribed a theological significance to the picture: pain as God’s chastening, suffering as atonement, agony as deliverance.

It was a vision of surgery so painful that it has haunted me since; it was not obvious why the suffering of either the Black or the white man was being sacralized. Furthermore, the composition is vertically striped with bright red, blood red; to my eye, a river of blood seemed to extend from the top of the frame down the back wall, grow torrential in the flow of folds of the blanket on the bed, and coagulate in a pool at the bottom, in the cloak of the dead man. Ordinarily I do not flinch at the most graphic depictions of martyrdom or crucifixion—even John the Baptist’s head on a pike. Yet something about this picture made my heart batter about with distress. I was surprised, too, to find myself reading it with such unusual literalism. This was well before reliable painkillers or anesthesia; my mind raced with thoughts of saws and knives. I dreamed of the painting and woke frequently, always worrying that “a leap of faith” was, with only one leg, surely a tumble to death.

I mulled cluelessly on this painting for almost a year. In my ignorance, my mind composed its own narratives and wandering explanations. The body on the ground was the black sheep, the sacrificial lamb, Epimetheus the Afterthought. The body on the bed was a zombie chimera pieced together from the perceived spare parts of another. I imagined that the open book in the hand of the figure in the black cap was an alchemical text with secrets about some early type of galvanism: how to transmit electrical sparks of life into used body parts. Surely, I told myself, the open box in the hands of the figure on the right was filled with the balm of oblivion.

Upon more recent reflection, I think part of the distress I was feeling was rooted in my vague association between the painting and a passage from one of Frederick Douglass’s 1842 speeches. Douglass famously compared slavery’s violence to a kind of amputation. He described his escape from his owner-master in vividly literal economic terms, as stealing the property of his own body, a wrenching theft of “this head, these limbs.” As “chattel” he was legally disassembled by a system of property in which he had no hand, yet within which he was intimately subsumed. Enslaved bodies were amputated from generative categories like family, citizen, human being.

The French philosopher Jean-Luc Nancy was prompted by a very different experience—receiving a heart transplant—to reflect on the sense of his body as owned. It was the incorporation of a vital part extracted from another that underwrote his meditation on ownership, an essay called “The Intruder.”^* Nancy feels discombobulated because an “alien” heart has taken up residence in his body. Of those moments when his first heart made its infirmity known through persistent “arrhythmia and palpitations,” he asks, “If my heart was giving up and going to drop me, to what degree was it an organ of ‘mine,’ my ‘own’?”

Douglass’s and Nancy’s essays have uncanny force in part because they push the language of property past its normative limits. Both posit unusually painful encounters with notions of possession and autonomy; both are unsettled by what it means to enunciate “I” and “me” and “mine.” Similar matters have preoccupied me in my career as a professor of contract law. I spend a great deal of time thinking about the body as property, wondering to what extent any of us are truly autonomous rather than just interconnected pieces of a larger puzzle. Do we have anything like a considered ethic of care for how we borrow, attach, lean on, fit together, or abandon parts of one another? Where does a single body end and the complex social webbing of prosthesis begin?

One of the weirder legal cases that raises this question involved a South Carolinian named John Wood, whose leg was amputated after an airplane crash in 2004. (The subsequent saga is recorded in a sad-funny little film, Finders Keepers.) Desiring to be eventually buried as a bipedal entity, Wood had the leg embalmed and placed it in a storage unit with other belongings. But when he fell behind on the rental fees, the contents of the unit were sold at auction to one Shannon Whisnant, who found the leg carefully wrapped and nestled inside a barbecue smoker. Whisnant called the police, who traced it back to Wood, who in turn insisted the leg be returned. Detached or not, it was “his,” because it had once been part of him. Whisnant disagreed, noting that the law recognized him to be the “good faith purchaser-for-value”: he hoped to put the leg on display in a homemade House of Horrors, charging a hefty price for the viewing. “Halloween’s just around the corner,” he explained.

The case of Wood v. Whisnant suggests how the language habits of rigid contractarianism can clash with the ethics of care and broader public interest. John Wood’s lost leg is a nearly irresistible subject for allegorizing, uniting, as it does, dilemmas over everything that makes communion, community, and cohesion possible—family, market, language itself. Shannon Whisnant may have been legally right but affectively wrong when he referred to Wood’s leg as his embodied property: “my extra foot.” Like any good businessman, he was careful to point out that, by purchasing the smoker and its contents with legal tender, he had incorporated them into his estate, status, profile, and profit. To top it off, he advertised himself as “the foot man.”

To Wood, however, the leg was part of “me”—not separable as “a” leg but indivisible from “himself,” or his body. It lay beyond commercial exchange, in sacred terrain; its amputation was a symbolic as well as a physical loss. The bony relic was a palpable memorial to the moment he lost it—in the plane crash that killed his father. The leg, removed from the body of which it was formerly an integral part, was a remainder of the day, the marker of a grave.

The ghoulishness of this situation should not obscure the legal issues at stake: should a commodity interest in the contents of the storage unit override the sacrosanctity of corporeal integrity? Are discarded body parts “alienable” in contract? Or do they fall within the realm of what we deem “inalienable” under the Constitution?

It depends on the kind of legal discourse you subscribe to. In Anglo-American jurisprudence, contract law concerns itself almost exclusively with the interests of private parties who assign value to the object of their contract according to their own subjective sense of worth. Thus made property, that leg as “object” has no value other than the agreed price of transfer. One definition of property is that it confers a right to exclude. In other words, the value that an owner of an object places upon it excludes or supersedes whatever value it might have had to prior owners or to those not party to the contract. The object is “objectified” precisely because it has no stable or inherent value.

In contrast, constitutional law governs the realm of polity, civic life, and civil rights. The Declaration of Independence celebrates “Life, Liberty and the pursuit of Happiness” by establishing an inherency of civic worth. This is enshrined in the notion of legal personhood as an “unalienable right” that can’t be bargained away on an auction block.

Within the meaning-making system of contract law, John Wood’s leg becomes an inanimate thing, its status affixed by the storage company and the buyer. Within the semantic realm of constitutional law, however, the leg may be seen as an extension of Wood’s dignitarian interest in the integrity of his body, autonomy of mind, and general civic regard. This latter is the ethic that is supposed to protect us, if imperfectly, from the commercial marketing of body parts, and legally shield us from the predations of grave robbery. This is also the constitutive promise of egalitarian community: that none of “us” is worth more than another. The core value of constitutional citizenship is that “we” do not eye each other for profit.

This foundational jurisprudential distinction between constitution and contract—between the vivacity of humanity and the civil death of objectification—is at the heart of slavery’s discursive legacy. Modern concepts of contract have allowed efficiencies of transfer and speculative credit markets to flourish, but contract law works best when applied to fungible inanimate things, for which there is an easily determined market price. This is because with inanimate things the basic remedial scheme for broken contract expectations is usually narrow: value promised minus value received. If I paid you ten dollars for magic beans but received only two dollars’ worth, you owe me ten minus two, or eight dollars. It does not deal with punitive damages or with beyond-price matters such as life and liberty, or pain and suffering, or executions or imprisonment or humanitarian issues.

The 1857 case of Dred Scott v. Sandford is an excellent example of the shift in diction from constitutional vivacity to object-of-contract status. For several years, Scott, born a slave, had resided in the free territories of Wisconsin and Illinois where he had been taken by his owner, John Sandford; by virtue of his location Scott resisted Sandford’s efforts to return him and retain him as property in the slave state of Missouri. Asserting his desired status as a fully agentic human, Scott described Sandford as “assaulting” him: he used the language of a citizen’s claim of criminal and constitutional violation. Sandford, on the other hand, asserted that Scott and his family had been “gently…restrained” and returned to Missouri in good condition: he used the language of bailment, describing Scott like a well-delivered UPS package.

A similar tension is at work in Toni Morrison’s Beloved (1987), based on the case of Margaret Garner, an enslaved woman who escaped from Archibald Gaines, her rapist and owner, fleeing from Kentucky to Cincinnati, in the free state of Ohio. As bounty hunters encircled her, she killed one of her daughters and attempted to kill her three other young children to spare them a future under Gaines. When her case came to trial in 1856, abolitionists in Ohio attempted to have her tried for murder, which would, ironically, have affirmed her status as an agentic being with the human capacity for willful killing; she would have thus been better able to assert her status as a free woman and to claim slavery’s cruelty as mitigation. Instead the court ruled her to be chattel—Gaines’s “rightful” property. Under the Fugitive Slave Act of 1850, she was returned to Kentucky as “contraband.”

The use of contract to decorporealize human beings has structural parallels to this day. Consider a society in which there is no governance but the currency of contract: this is, in effect, the society described by Jordan Belfort in his hideous memoir The Wolf of Wall Street (2007). Recounting an office plan to wrap human beings in Velcro suits and throw them at a dartboard to see if they stick, he ponders the trade-off:

In essence, what it really boiled down to was that the right to pick up a midget and toss him around was just another currency due any mighty warrior, a spoil of war, so to speak. How else was a man to measure his success if not by playing out every one of his adolescent fantasies, regardless of how bizarre it might be?… If precocious success brought about questionable forms of behavior, then the prudent young man should enter each unseemly act into the debit column on his own moral balance sheet and then offset it at some future point with an act of kindness or generosity (a moral credit, so to speak), when he became older and wiser and more sedate.

The instrumentalization of fellow humans becomes entirely rationalized by the logic of cost. If the price is right, anything goes. It is perhaps more common to cast this critique as one of the neoliberal economy. But I also think that the objectification of human beings is the residue of contractarian syntax: a body acted upon, owned by legally assigned agents, one’s fate negotiated by others.

Nor is this just a matter for speculation. In the summer of 2022, Florida governor Ron DeSantis fraudulently lured nearly fifty Venezuelans away from the Texas border, where they had been seeking asylum, and put them onto a plane that deposited them without notice on the island of Martha’s Vineyard. This was done without their consent; it was a political maneuver to make Democrats in Congress embrace harsher forms of border control. It used migrant bodies as bargaining chips, pawns in a game between North and South, liberals and conservatives, sanctuary cities and walled spaces.

That the human plight of asylum seekers was irrelevant in the political chess of immigration policy became even clearer that December, when Greg Abbott, the governor of Texas, rounded up about 120 people from the border, bused them to Washington, D.C., and deposited them on the street in front of Vice President Kamala Harris’s residence on the coldest Christmas Eve in the region’s history. The temperature hovered at 18 degrees Fahrenheit. The group, including very young children, were abandoned in the road with no winter clothing, some wearing only T-shirts and sandals. Still, political points had been scored.

But back to the painting with which I began: one day I woke up from my spell, finally stopped guessing, and showed the picture to an art historian friend who unpacked it for me in less than a minute. She informed me that it depicted the Miracle of the Black Leg, as performed by the “twin saints, holy martyrs, and silverless (or unmercenary) physicians Cosmas and Damian.” Cosmas and Damian, who lived in the third century, were reputed to have performed a series of remarkable healings before they were beheaded by the emperor Diocletian; they are the patron saints of surgery, medicine and pharmacy. There are many competing stories about their origins, for they are variously tied to the churches of Rome, Asia Minor, and Arabia.

It turns out that hundreds of stories exist about the twin doctors performing this particular trick of transplantation, more commonly referred to as the “miracle of the black leg.” The white (or “healed”) body is alternately said to be that of Emperor Justinian, or a bishop, or a burgher. And there is much contestation about the source of the leg, the power of that dark appendage pointing to different theologies and moral valances: Was it taken from a living or a dead man? An Ethiope or a Moor? A Christian or a Muslim? Was it sacrifice or redemption, resurrection or grave robbery? Was the image meant to signify transfiguration from death to life, or was it a mark of some impossibly liminal space, a half and half, the stitching together of like and unlike—an eternally embodied transgression of one self?

I am glad for the time I allowed my mind to wander over the painting. I pulled odd strands and random associations together as I looked and looked. I invented stories that defied history, time, and place. In the process I learned a great deal about myself—about how I prioritized the pieces of a puzzle I had no reasonable chance of putting together. Ultimately I had to step outside of my own assumptions, expectations, and fictions and open myself to the documentation of the painting’s history. I did not have to abandon my creative musings, but I had to put them in perspective—to set them alongside the symbolic universe of this religious narrative.

I still do not know the painting’s exact provenance. But it seems to signify a transformation that preserves one body deemed valuable and exploits another deemed expendable. Even across centuries, it invokes a hierarchy of living subjects, incapacitated beings, nonpersons, and things. Its figuration of amputation and potential revival is offered as a veneration of saints, but it is tempting to analogize its peculiar emotional force to present-day spiritual attachments, prostheses, and rhetorical miracles: the cryopreserved blastocysts that have recently leapt from the status of “medical product” to that of “extra-uterine children,” for example, or the human beings consigned to civil death with the too-easy capture of labels like “enemy,” or “illegal,” or “useless eater.” I can’t help worrying about whose bodies are uplifted as whole and whose pieces and parts get abandoned on the cutting-room floor. We must deal with that question even as we aspire to a respectfully collaged, gently sutured, vibrantly interdependent human endowment. “Every utopia faces the same problem,” Margaret Atwood told an interviewer in 2013. “What do you do with the people who don’t fit in?”