The article explores the concept of “witness” by looking at the history and tradition of giving testimony in three contexts, legal history, religion, and literary narrative, with the goal of situating lawyers within these traditions. The author’s interest in the topic was prompted by years of frustration with the circumscribed role of lawyers in the judicial system’s truth-telling enterprise and, more profoundly, by concerns with lawyers’ restrained capacity to shape truth in the larger, social-cultural sense. The question asked, therefore, is whether lawyers, who are positioned to witness (as in “behold”) so much about society, and have the social authority to witness (as in “attest”) to what they have seen, have an obligation, or at least a right, to speak. If so, what are the parameters of this role, what are its roots, and what is the nature of the discursive practice?
What is needed is a structured process ensuring genuine two-way communication between technical standards bodies and the legal community. In the long term, this should entail collaboration between law schools and professional legal associations, on the one hand, and the Internet-related technical community on the other. This effort must also be genuinely transnational, including both legal and policy experts from a variety of countries, if it is to achieve the goal of minimizing monitoring and compliance costs. Such dialogue could take a number of forms, including: enhanced focus on the nature and social implications of Internet technologies both in law school curricula and in professional continuing education; training seminars on legal and public policy issues for technologists involved in standard-setting processes; and liaison arrangements institutionalizing opportunities for two-way consultation between the judiciary and the technology community on issues of mutual concern. These efforts could be fostered and facilitated by a range of international actors (independently or in collaboration), including the Organisation for Economic Co-operation and Development, the International Law Commission and the United Nations Educational, Scientific and Cultural Organization.