Recently, a justice on Botswana’s high court struck down a Ngwaketse Customary Law rule precluding women from inheriting family homes, finding that it contravened the right to equality principle enshrined in Botswana’s constitution. Perhaps as interesting as the justice’s conclusion is the language that he used. According to Justice Dingake, ”it is time for Botswana judges to assume the role of the ‘judicial midwives’ to assist in the birth of a new world struggling to be born – a world of equality between men and women as envisioned by the Botswana Constitution.”
“This court believes that it is its function to treat the Constitution as a living organism and to constantly sharpen it to address contemporary challenges,” said Dingake. He is of the view that it is the function of judges to keep the law alive and to make it progressive without being inhibited by those aspects of culture that are no longer relevant, to find every conceivable way of avoiding narrowness that would spell injustice.
Justice Dingake’s idea of judge as “judicial midwife” is an interesting spin on the traditional concept of judge as “judicial activist.” Advocates of strict constructionism or judicial passivism, of course, use the term judicial activist derisively to criticize judges acting as legislators. But the term judicial midwife seems to convey that the judge is instead giving life to something nascent in the Constitution but not fully expressed. The United States analogue is Griswold v. Connecticut, 381 U.S. 479 (1965), with the Supreme Court famously finding “that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights….”
The term “judicial midwife” was actually specifically used by David J. Garrow in tribute to Judge Frank M. Johnson, Jr., in which he referred to him “as the essential judicial midwife for what became the Southern black freedom struggle’s most famous protest.” It was also used by Justice Scalia in Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989), in criticizing the majority’s conclusion that a “district court can use its compulsory process to assist counsel for the plaintiff in locating nonparties to the litigation who may have similar claims, and in obtaining their consent to his prosecution of those claims.” Scalia did not see in any law any “implied authorization for courts to undertake the unheard-of role of midwifing those actions.”