New online from Law and History Review: Witnesses, Judges: A Revolution Untold, by Orit Malka, Hebrew University:
Witness testimony in a judicial setting is commonly viewed as a form of evidence—a means
to inform a judicial body of relevant facts in a given case. In this perspective, witnesses are merely instrumental to the process of adjudication. While this viewpoint provides a useful account of how we think of witness testimony in courts today, it is ill-suited to the way witnesses and their role were perceived in the ancient world. Drawing on a cross-cultural analysis of ancient and late antique texts, the article recovers a different perception of the role of witnesses that once prevailed in the societies that gave rise to Western civilization. According to this alternate view, witnesses were not seen as passive providers of information but rather as active agents with the power to adjudicate—a role that we would now associate with judges. The article offers a new conceptualization of this historical transformation, outlining two paradigms that can help us critically examine the implied assumptions about the role of witnesses in adjudication: “the instrumental paradigm,” which is dominant in contemporary thought, and “the authoritative paradigm,” emerging from ancient texts, wherein witnesses held a far more authoritative role than the contemporary understanding suggest. The study argues that the instrumental paradigm reflects a radical transformation in the meanings of testimony and witness as legal concepts—a shift that marks an unexamined revolution in the history of legal thought.
--Dan Ernst
