On 2007, the Museum of Ethnology of Hamburg decided to reimburse more than 10,000 visitors of an exhibition of the Terracotta warriors because it came to light that the figures on display weren’t ‘original’. They were mere copies of the original figures. The museum’s director at the time, Wulf Köpke explained that ‘he had agreed to the exhibition on the firm understanding that the exhibits were genuine.’ 
At first glance, the measure appears as correct. Why charge people to see alleged original figures when they were, in fact, fake? However, what if we think of the incident with a different narrative? What if we abandon the western tradition and analyse the work of art within its tradition?
Lisa Sarmas (Sarmas, 1994) describes legal storytelling as a methodology interested in what is excluded by the hegemonic or dominant legal narrative. By focusing on what’s structurally excluded by the dominant legal narrative, we could challenge and transform the legal system in order to make it more inclusive and responsive to real social practices. In what follows I will briefly draft the dominant narrative of law’s originality and then compare it with a counter-narrative that may help us to identify some discontinuities or exclusions made by the law that affects how we understand certain artworks such as the Terracotta Warriors.
For western law a piece of artwork is original if it is possible to find that its author has exercised some effort in its creation; if the work isn’t copied and (at least for continental law) if the work bears the imprint of the author’s personality. It is said that this account of the author, the work and originality is strongly influenced by German Romanticism, which deemed the author as he who, by applying his genius, is the unique originator of the work. To that extent, individualism and originality appear as central for the western tradition. I what matters is the genius of the author, then the only thing that matters is the unique piece of work that was made by the author. Moreover, such work is deemed as a stable and finished piece; the signature of the artist both authenticate and closures the artwork. That explains, according to Latour, this age’s obsession for the original (Latour, 2010).
Viewed from this narrative the Terracotta warriors were, in fact, mere copies. They were neither authenticated nor closured by their author’s signature. Moreover, the author of the original never touched the copies being displayed in Hamburg. Does this mean that they were not original?
Here we can introduce a counter-narrative. Byung Chul-Han (2017) explains the oriental notion of originality as a deconstruction of an invariable and unmistakable presence that is confined to itself. For the oriental tradition, the notion of a finished artwork is unintelligible. In fact, the artwork is understood as an infinite process without a teleological purpose. The artwork (and its process) does not aim to a definitive and stable identity. On the contrary, it is thought as a piece of incessant transformation.
Within this counter-narrative, the copies of the Terracotta warriors were not different from the ‘originals’. Chinese people, explains Chul-Han, even use the concept of fuzhipin to designate exact reproductions of the original; such concept, in any case, has a negative connotation. Because the object is an exact reproduction of the original (or the first) work, they are convinced that in their essence they are not different.
Why then the Hamburg’s Museum of Ethnology claimed that they were deceit and reimbursed the visitors of the exhibition? Legal storytelling can help us to explain this situation by saying that the dominant narrative of legal originality, institutionalised by copyright’s law, is obsessed with individual originality exerted to produce unique pieces of works; this obsession excludes entire traditions, such as those described by Byung Chul-Han, and social practices such as indigenous people creation processes, collective authorship, among others.
Legal storytelling can be a very fruitful methodology to highlight how the law exerts violence when determining its scope of operation. However, a further question can be made: It is just a matter of who’s narrative is hegemonic? What if the limits of the law to grasp that exclusions are not an issue of a discriminatory narrative? What if such limits are, in fact, structural limits of the law as an institutional artefact?
The law, like language, has limits. Such limits are exacerbated when the language institutionalise and categorise social practices, as the law does. If we think about legal concepts as being construed by constitutive rules in the form ‘x counts as y in c’ (Searle, 2018) exclusions are inevitable. No matter how inclusive a legal system could be, there will be violent exclusions. I think this is not solely a matter of narratives, but, in fact, has more to do with the very nature of law.
Chul-Han B, Shanzai. El Arte de la Falsificación y la Deconstrucción en Chino  (Caja Negra 2017).
Latour B and Lowe A, ‘The Migration of the Aura or How to Explore the Original Through its Fac Similes’ Thomas Bartscherer (ed.) Switching Codes (University of Chicago Press 2010)
Sarmas L, ‘Storytelling and the Law: A Case Study of Louth v Diprose’ (1993) 19 Melb. U. L. Rev. 701
Searle J, ‘Constitutive Rules’ (2018) 4 Argumenta 51
The Guardian, ‘German museum admits terracotta warriors are fakes’ Available online: https://www.theguardian.com/world/2007/dec/12/china.germany
2 thoughts on “Two original stories: Between storytelling and the nature of law”
Thank you very much for your reply!
I think you are right when bringing Da Vinci’s quote, for it expresses a certain aura of a never-ending production of art. Moreover, I think that both the oriental understanding of the creation and Da Vinci’s quote that you brought can help us to understand the particular way in which the law operates.
I think that the key question is not what stories are being heard by the law (in a similar way in which storytelling operates) but, what stories can the law hear. I think that it is not (only) a matter of hegemony of discourses, but a structural limitation of law’s concepts: they are designed to grasp individual rights, being necessary, therefore, to have an individual author to whom allocate the work, which, in turn, has to be a finished one, meaning that it can be distinguished as the result of the creative process.
In my view, the problem with understanding the problem of the exclusion of silencing of different narratives from the law as a problem of the people holding the power to influence in law’s operation can distract us from a foundational problem of law, for it simply cannot grasp the entire reality and all the narratives. A tentative response to this can be that precisely the people in power control what can be thematised.
However, I think that there is an internal limit for new or excluded narratives to be included, that might be even more powerful than the influence of the elites. Even if excluded narratives would be included in the law, they run the risk of being neutralised or denaturalised by the internal operation of the law, which is, by nature, adversarial. Therefore, all the narratives that require a certain type of solidarity or a different understanding of the political community, when juridified, run the risk to be thematised in law’s terms, as matters of individuals against individuals.
First of all, I find it important to say that this example and these different visions of the original are extremely interesting as it is not something a lot of people might be aware of.
Then I would say that I find this notion of oriental original to be unique, singular and therefore interesting as well. As someone who has also studied IP law, I find that something as basic in that legal branch as ‘the original’ can be defined in different ways in different traditions, as you say.
For example, in the French system, the originality has to bear the mark of the creator, its personality. This follows the western wave of thinking, and yet differs a bit from other visions of the original.
What is also interesting, is that your piece made me think of a very famous quote attributed to Leonardo Da Vinci which says ‘art is never finished, only abandoned.’ Here we can find this underlined vision of the process of art, a never-ending flow that can constantly change. Doesn’t this resonate with the oriental vision of the artwork? And yet it is attributed to a western artist.
These were all ideas that came into my head as I read your post on the narratives and how these narratives shift and change according to where you situate yourself. Going back to this idea, would we then be able to say that legal storytelling situates itself in a very specific social/legal imaginary? While I think this is true, how do we separate this idea from Culture? Isn’t, ultimately, culture what affects the understanding that a community will have of something, in this case, what an original is?