�We are not free, however, to follow a course of our own'[147]: Legal Reasoning in the Caribbean

Overwhelmingly, legal reasoning in the Commonwealth Caribbean adopts a formalist approach. Legal formalism has always been the traditional approach in England by sheer expediency of bringing certainty to the common law, which for centuries trumped legislation as the primary source of law.

Even more stinging rebuke was reserved for the local courts and legislature for feeling itself bound by English cases and patterns of legislation and not employing any methodology of reasoning to avoid principles that were clearly unsuited to the Caribbean. The English version of the common law through this legal culture was considered supreme and neither legal practitioners nor judges generally saw beyond its foreboding shadows, regardless of the injustice that the application of the common law caused. In other words, the doctrine of precedent, both as it relates to the common law and to interpretation of legislation, mostly adopted from England, had a virtual monopoly on legal reasoning in the Commonwealth Caribbean.^[150] This was seen as the cause of the difficulty in developing a Caribbean jurisprudence.

The case law illustrates that Commonwealth courts tend to treat all English cases, even decisions from inferior or lower English courts, in this way, that is, as declaring the common law principles.

The difficulty was not entirely a matter of how the doctrine of precedent was being applied to the common law. It was related to the failure to resort to other sources of legal reasoning. Further, the reality is that statute and, importantly, the written constitutions with supreme law clauses and enforceable rights provisions, called on the legal profession and the judiciary to expand their vision beyond precedent to other theories of decision-making. There was a concentration by the critics on what was wrong with the way in which Caribbean courts were reasoning but no suggestion made as to the corrective response. There were in fact decisions, which ran against the grain of criticism that Caribbean judges failed to exhibit critical analysis, but there was no attempt to analyse those judgments to discover a methodology of reasoning that could consistently be employed in forging this new era of Caribbean jurisprudence.

Moreover, when the Privy Council made a decision that broke away from its usual formalism, as it has been doing increasingly of late, the criticism became the failure of the Privy Council to abide by the strictures of the doctrine of precedent.^[152] This became even more impassioned when the Privy Council shifted legal gear in its reasoning and theories of decision-making after the judges of that court became familiar with the rights approach to legal reasoning through the enactment of a charter of rights for the United Kingdom and became immersed in the jurisprudence of the European Court of Justice. The death penalty cases especially became literal legal and political battle grounds that paradoxically found the courts of the Commonwealth Caribbean seeking to cling to its the colonial heritage of the death penalty and the British court wanting to wrest it from their bosom and bring them into the era of modern regard for human rights.

A. Sir Hugh Wooding CJ and the Supremacy of English Precedents

Sir Hugh Wooding, Chief Justice of Trinidad and Tobago at the time of the coming into force of the Independence Constitution of that state in 1962, was the pre-eminent legal mind in the Caribbean at that time. His call for transformation of the Caribbean jurisprudence was radical in 1966, addressing the County and District Court Judges Association in Toronto, Canada, he declared that �We need change, radical, almost revolutionary change, if we are to have a juridical system to meet the needs of our social order.’^[153]

As Chair of the Committee on Legal Education, he presided over the establishment of a legal education system for the Commonwealth Caribbean that initially was built upon an acceptance of legal realism and sociological jurisprudence.^[154] That system called for in its first year, the study of Caribbean History, Sociology, Economics, Political Science, Law and Legal Systems in the West Indies and Legal Methods and Techniques. In the second and third years, students were compelled to read courses in Law in Society I and Law in Society II respectively, requiring not lectures or examination, but tutorials only and an extended critical analysis of the effect of some laws on society. Contract and Torts were subsumed under one course — the Law of Civil Obligations. �The Development of Constitutions and Constitutional Law in the West Indies’ became a course of study for the first time.^[155] The Wooding Committee recommended that the curriculum not be limited to �strictly legal subjects’; it was �of the utmost importance to rise above any narrow professionalism because a legal practitioner should be trained to become not only a caretaker of his client’s interests but also a significant member of the society in which he lives.’^[156] It said that �law is not only a learned but also a liberal profession, to the end that its practitioners should be graduates with legal minds and a keen awareness of social issues.’^{[157] [158]}

However, the legal training of Wooding CJ never allowed these enlightened epistemic modalities to be brought into his judicial decision­making.

Collymore v AG

The most famous of his decisions is Collymore v AG⁶⁰ delivered after his revolutionary change in jurisprudence speech. The issue in Collymore was not only the role of the court in relation to the new independence constitutions, but also the influence of precedent and the colonial tradition in the understanding of the new Caribbean polity. The question before the court was whether the Independence Constitution of Trinidad and Tobago 1962 in expressly guaranteeing a right to join a trade union under the provision dealing with freedom of association includes the right to withhold labour as part of union activities. Wooding stuck to his legal training. He validated the provisions of the Trinidad and Tobago Constitution, not by reference to the history of that movement in the social and historical development of the country which would have been in the forefront of the minds of the architects of Independence, many of who were trade unionists, but on the historical precedents of England.

I have made this [historical] review [of precedents] not only to show why I prefer to regard the so called right or freedom to strike as what in essence it is, a statutory immunity, but more so because I think it exposes the fallacy of integrating the statutory immunity with the freedom of association. The immunity was a consequence of the free association which enabled the associates to win for themselves legislative relief from the imbalances to which the common law had made them subject. So just as the freedom of a builder to build should not be confused with the building he planned nor yet with the tools which he used for its erecting, so too freedom to associate should not be confused with the immunities with the associates secured nor yet with the means which were employed for their securing.

In my judgment, then, freedom of association means no more than freedom to enter into consensual arrangements to promote the common interest objects of the associating group. The objects may be any of many. They may be religious or social, political or philosophical, economic or professional, educational or cultural, sporting or charitable. But the freedom to associate confers neither right nor license for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country. In like manner, their constitutionally guaranteed existence notwithstanding, freedom of movement is no licence for trespass, freedom of conscience no licence for sedition, freedom of expression no licence for obscenity, freedom of assembly no licence for riot and freedom of the press no licence for libel.^[159]

As Antoine points out, the Chief Justice felt himself bound to adopt the English common law position that there was no right to strike, ignoring the possibilities under the new independence constitution and its explicit protection of freedom of association.^[160] She criticized this judgment for betraying �a rigid adherence to the belief that correct principles of law are only those which could be located under expositions from English courts.’

Even though the case is renowned for Wooding CJ’s famous statement that the courts are constituted the guardians of the Constitution, even this was grudging because he felt compel to note in effect that this guardianship had a judicial escape route; �what is or is not inimical to the peace, order and good government of the country is not for the court to decide.’^[161] As Margaret Demerieux commented, this �virtually denies the claimed role of guardianship of the Constitution’^[162] But the true criticism of Wooding CJ’s judgment is the limited source of reasoning which was confined to precedent and a textual analysis that was entirely controlled by precedent.^[163] To the extent that the historical tradition was garnered, it was not the historical tradition of the society for which Wooding was writing.

Johnson vR

Wooding CJ regarded English precedents as supreme and relegated the Caribbean courts to be mere purveyors of precedent, even though, in his absolute intellectual brilliance, he was able to exhaust in the clearest way the alternative solutions and even to abstract that which was best. The precedent, if it existed, was, however, the only justification for the choice between alternatives. Even where House of Lords decisions were widely viewed as wrong, he felt constrained to follow them. The much criticized and subsequently overruled House of Lords decision DPP v Smith^[164] was inconsistent with the rules consistently applied by the courts in Trinidad and Tobago. In giving the decision of the Court of Appeal in Johnson v R^[165] he made a study of the emerging law in other jurisdictions, principally the Australian High Court which had refused to follow Smith. Wooding CJ concluded, �If we were free to adopt a course of our own, we would follow the approach of Taylor J [in an Australian case]—not because it is really fundamentally different from that of any of his brethren, but because it is so elemental.’ But such was not to be.

Holding himself bound by the House of Lords in Smith, he made the poignant remark, �We are not free, however, to follow a course of our own.’^[166]

White v Springle

This approach was also taken in the case of White v Springle^[167] in which the mother and father of a child born out of wedlock tussled over custody. The reality of the situation in the Commonwealth Caribbean, including Trinidad and Tobago, is that the overwhelming majority of children of Afro-Caribbean families are born out of wedlock. English common law historically denied status to these children. The question before Wooding CJ was whether the father, against whom there was an affiliation order adjudging him the putative father of the child and assessing child support, had standing to apply for custody. Wooding acknowledged that, unlike the English legislation, the Trinidad and Tobago Affiliation Proceedings Act 1957 gave the putative father an independent right to apply for the custody of his child and gave the magistrate the power to commit custody to him.^[168] Without the least hesitation, and following the English precedents, Wooding CJ held that the English common law trumped the terms of the legislation. He referred to the Infants Ordinance which dealt with proceedings before the Supreme Court, while this was a proceeding under the Affiliation Proceedings Act in the Magistrate Court. He held that �the titles “mother” and “father” belong prima facie to only to those who have become so in the manner known to and approved by the law and the consequent meanings of those terms when used in a statute are not to be departed from unless a compelling reason for so doing can be found in the statute itself.’^[169]

Neither the reality of the social circumstances in Trinidad and Tobago, the clear close relationship between the father and the child, the legal system’s acknowledgement of paternity, including the imposition of child support payments on the father, nor the specific wording of the Affiliation Proceedings Act were �compelling’ reasons in the judge’s view. Therefore, the court read down the text of the Act by inserting the words that �it must be shown clearly that it will be detrimental to [the child’s] welfare that the child should remain in her custody.’^[170]

B. The Realism of Telford Georges

Thornhill v AG^[171] was born into a judicial climate that underplayed the effect of the independence constitutions of the Caribbean and sought to affirm, like Wooding CJ did in Collymore, that not much had changed. Very little light emitted from the constitutions by way of judicial interpretation. Georges J, as he then was, brought a floodlight to judicial decision-making on constitutional values that made even the Privy Council take notice. Section 2(c)(ii) of the Trinidad and Tobago Constitution 1962 provided that �no law shall abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of any of the rights and freedoms hereinbefore recognized and declared and in particular no Act of Parliament shall (c) deprive a person who has been arrested or detailed (ii) of the right to retain and instruct without delay a legal adviser of his own choice and to hold communications with him.’ The question was whether an accused has a right to counsel as soon as he is detained and before legal proceedings commenced. Based on the Wooding common law/historical/precedential authority approach which was confirmed by the Privy Council in the landmark case of DPP v Nasralla,^[172] that no new right was created by the constitutions, the answer was no. Georges J in addressing the argument clearly indicated that the Wooding formalist approach was not available that day. His recourse was not to English common law case history but to the value judgment of the ordinary citizen of Trinidad and Tobago in reading this provision which constituted his contract with the state. He laid out his realistic mode of reading the Constitution in clear and unimpeachable language.

The first issue for determination is whether or not the applicant has the constitutional right which he asserts he has...To the layman reading the Constitution of Trinidad and Tobago which is set out as the Second Schedule to the Trinidad and Tobago (Constitution) Order in Council 1962...the answer would clearly be that he does.^[173]

The profound nature of this simple declaration cannot be gainsaid. In one sentence, Georges J captured the value of the legal principle - what it means to the ordinary citizen whose life it affects, what it means for constitutional democratic governance and what the role of decision­making involves. It did not, like the formalism of Wooding CJ, require in the first instance and the last, a consistency with prior cases or abstract concepts, but �the layman reading the Constitution’ whose life it is meant to govern. Thus, the moral relationship between the rule of the Constitution and the citizen is firmly established as the major premise. The framers of the Constitution cannot be conceived of capable of �[s]uch calculated cynicism’ so as to mislead the citizen as to what is meant.^[174]

Georges J then had to disarm the general savings law clause in section 3 of the Trinidad and Tobago Constitution 1962 which stated that the fundamental rights protection in sections 1 and 2 did not apply to any law that was in force at the commencement of the Constitution. This has served to preserve a common law precedential theory of adjudication as to the meaning of the fundamental rights provisions. Using the plain meaning textual approach he announced that �[t]he phrasing is quite clear,’:

There may well have been areas in which there was no law in force at the date of the Constitution. The proclamation that rights and freedoms existed in that area would then create such rights and freedoms and it would devolve upon the courts to interpret what these rights and freedoms were and to decide whether subsequent legislation abrogated abridged or infringed them. Assuming therefore that there was no such right at common law as is set out in s 2(c)(ii) I hold that the right now exists because the Constitution has proclaimed that it has always existed here and that it should continue to exist. The burden is on the State to show that there was some law existing at the date of the Constitution which qualified that right and to which therefore it remains subject by virtue that there was some law existing at the date of the Constitution which qualified that right and to which therefore it remains subject by virtue of s 3.^[175]

Finally, Georges J hinted at what will highlight his signature approach to common law decision-making — that its principles are not immutable but manipulable. He dismissed the attempt to shackle the Caribbean law to English common law history during the reign of Charles II and James II to which he was referred:

While this is doubtless an accurate description of the common law at that time, I would hesitate to think that it would be the state of affairs at the date of the Constitution. The strength of the common law as I understand it is its capacity for growth. Its concepts may seem to develop only too slowly but when the challenge of changing social conditions has to be met and an appropriate factual situation is present to the court a sensible answer can often be produced which can be shown to have been foreshadowed in the dicta of the judges of the past.^[176]

Minister of Home Affairs v Fisher

Perhaps the most important and cited case in Caribbean constitutional interpretation is Minister of Home Affairs v FisherF^[177] Every law student and practitioner can recite the famous statement of Lord Wilberforce in relation to the approach to constitutional interpretation as purposive and generous avoiding the austerity of tabulated legalism. It appears in most judgments in the United Kingdom and the Commonwealth dealing with constitutional interpretation. What is not generally remembered or known is that the groundwork for this decision was laid by Georges JA sitting in the Court of Appeal of Bermuda.^[178] The judgment was an example of his broad and effective use of a wide range of legal arguments.

The issue in that case concerned the definition of the word �child’ in section 11(5)(d) of the Bermuda Constitution 1967. Section 11 provides protection for the freedom of movement of belongers and subsection (5) (d) defines belonger to include the child or stepchild of a Bermudan. The common law was clear. �Child’ connoted legitimate child and excluded the child born out of wedlock, deemed filius nullius. Further, both legislation and Caribbean constitutions recognized and enforced the dichotomy. It was therefore easy for the judge at first instance in Fisher to reject the claim of the plaintiff Eunice Fisher, a Jamaican married to a Bermudian, that her four illegitimate children, who were born in Jamaica to Jamaican fathers, belonged to Bermuda so as to prevent the Minister of Home Affairs from deporting them.

The issue brings into stark relief the difference between formalism as a theory underlying judicial decision-making and realism. The prevailing approach of Caribbean judges was that regardless of the reality in the Caribbean where most children are born out of wedlock, the historical common law distinction governed. In Re Lewis^[179] Douglas CJ in the Barbados High Court declared that �Under the common law of England, and at common law in Barbados, the father of an illegitimate child, so long as the child remains illegitimate, is not generally recognised for civil purposes. Whether this accords with the facts of life in the context of Barbados is not for me to decide.’^[180]

In approaching the appeal by Eunice Fisher against the deportation order of her children back to Jamaica, Georges JA referred to the fact that the doctrine of illegitimacy was not particularly suited to countries like the Caribbean where illegitimacy cannot be said to be a rare exception to the rule. He then stated the purposive approach to constitutional interpretation that was later to be adopted by Lord Wilberforce in the Privy Council. He said that in interpreting the provisions of the chapter protecting fundamental rights and freedoms, �technical rules of law should not be invoked to exclude persons from their protection.’^[181] He accepted that the concept underlying the protection of stepchildren is �that parent should not be separated from child during the child’s minority even though status cannot be transmitted.’^[182] He used the intention of the framers, taken from the text, just as he did in Thornhill. He assumed that the drafters of the Constitutions had in mind statutory provisions dealing with children. To him, the drafter �was dealing specifically with the subject of status. Yet he omitted to qualify the word “child” with the word “legitimate” as it is qualified in that Act. I consider the omission significant.’^[183] He then resorted to a predictive and evaluative assessment of his interpretation to seal the consequentialist analysis.

Acknowledgedly this interpretation does widen somewhat the categories of persons who �belong to Bermuda’ when compared with the categories of persons who are immune from deportation. An illegitimate male child of a male with Bermudian status would be now included. Having regard to the necessary restrictions in the way of acquiring Bermudian status, this does not seem alarming and standing by itself could not appear to be sufficient reason for applying the technical rule and excluding the illegitimate child of a woman who has Bermudian status.^[184]

Watson v Morgan-Grant

On this issue of the meaning of child and parent within the social context of the Caribbean, Georges JA had a final opportunity to weigh in. It constitutes the most straightforward statement of his realist approach to judicial decision-making in this area where policy interests take precedence over abstract rules and prior cases. But his efforts to strike a chord more harmonious with the prevailing cultural milieu were rebuffed.

In Watson v Morgan-Grant,¹¹ Georges JA sitting in the Court of Appeal, this time of the Cayman Islands, found himself alone in seeking to give legal recognition to the father of the child born out of wedlock and judicially declare the distinction between children at an end once and for all as a matter of policy. He returned to his methodology of treating with precedent as realists do by finding similarities in principle rather than in facts and being unswayed by outdated cases. He rejected the idea that the Caribbean courts are shackled to the previous decisions of English courts and held outright: â€?I can see nothing which requires a distinction to be made between legitimate children and children born out of wedlock.’^{[185] [186] This is on the basis the English decisions were merely persuasive and not binding on a Caribbean court of appeal.}

He then reviewed the celebrated Jamaican case of Clarke v Carey¹⁹ in which the Jamaica Court of Appeal construed the words of a similar statute to give â€?mother’ an unlimited meaning but restricted the meaning of â€?father’ to legitimate children only. Georges JA agreed with the dissenting judge in that case that such an illogical dichotomy does violence to language. His solution was simple:

The difficulties are resolved by holding that in the context of the Law policy does not require the recognition of the distinction between legitimate and illegitimate children. Once that distinction disappears there is no need to differentiate between parents of such children. An illegitimate child is no longer fillius nullius’- the child of no one.^[187]

Completing his judgment, as was his method, with a consequentialist analysis, he rejected the argument that there may be problems in identifying the father of the child since it does not frequently, if at all, happen in the Caribbean that there are claims by men to paternity of children which are disputed by the mothers of the children. But more positively,

Where paternity has been established the capacity of the father to file an application under the Law is of benefit to the child since it provides an additional channel by which the court can be apprised of the need to inquire into the desirability of intervention in the interest of the welfare of the child. The interpretation should be viewed as conferring benefits on the child rather than as conferring rights on the father.^[188]

However, Zacca JA, delivering the opinion of the majority was content to review the previous cases and conclude that they �held that “child” does not include an “illegitimate child” [and] were correctly decided.’^[189] Therefore, the relevant law �was not intended to embrace illegitimate children.’^[190] Compelled by Georges JA’s stinging dissent, Zacca JA had to explain Fisher and to show why the injustice of the case was acceptable. In so doing, he resorted to a formalistic analogy that distinguished the facts of the cases: Fisher involved the interpretation of a constitutional instrument and in this case a statute. Amazingly, the judge could not see the principle that the legal recognition of family relationships, especially as close as father and child, was as fundamental a human right as any to which anyone can claim entitlement. Further, there was no reference to the goal or purpose of the law or the effect that it would have on such a large number of children and their parents in a society where the vast majority of children would be deprived of the relationship of father.^[191]

A Postscript

Starting in 1976, almost all the states of the Commonwealth Caribbean passed legislation to reverse the common law of illegitimacy and to grant equality to all children regardless of the circumstances of their parents’ relationship at birth. This was done with popular political fanfare as would befit the emancipation of most of the members of a society from illegitimacy to legitimacy. In Trinidad and Tobago where the Status of Children Act was passed in 1981, in Marie v Powell,^[192] the court had to consider whether the legitimate brother and sister of the deceased intestate was entitled to letters of administration in his estate in preference to the only child of the intestate who was born out of wedlock. There is no doubt that the Act attempted sweeping reform using words that are ample for the purpose and determined in its objective. The Act provided that �Notwithstanding any other written law or rule of law to the contrary, for all purposes of the law of Trinidad and Tobago (a) the status and the rights, privileges and obligations of a child born out of wedlock are identical in all respects to those of a child born in wedlock.’^[193]

The Court of Appeal held that the case turned on the interpretation of section 4(1); specifically, the meaning of �vested.’ That section provides that the �Act does not affect rights which became vested before its commencement.’ Subsection 2 states that �Save as provided in subsection (1) this Act applies to persons born and instruments executed before as well as after its commencement.’ If the word assumed its widest meaning, �vested in interest,’ it would limit the retrospective effect of the Act and deprive the child of the deceased of right of administration and perhaps also of inheritance. The more limited meaning, �vested in possession’ would allow her to obtain the full measure of the Act’s ameliorating objective and she would be entitled both to succeed to her father’s estate and to letters of administration over her uncle and aunt.

There clearly was an ambiguity between an interpretation that would advance the objectives of the Act and one that would retard that objective. Attuned to precedent and not policy, formalism and not realism, the Court of Appeal, referring to ancient fourteenth century English cases, chose the latter interpretation. Admitting that �[t]he ordinary and primary legal meaning of the word “vest” when used in conjunction with the word “right” is vest in interest as well as in possession,’ the court held that since the deceased died before the passage of the Act, his daughter, being illegitimate had no right to letters of administration in her father’s estate, notwithstanding the statute’s provision that it applied to persons born before and instruments created before or after the Act and that all laws are to be read in conformity with the Act. �[T]he 1981 Act,’ said the Court of Appeal, �must be construed prospectively so as to preserve existing rights, and not retrospectively with the consequence of taking away any such rights.’^[194]

In McKenzie v Sampson,^[195] the plaintiff McKenzie applied for a declaration that he was the son of the deceased intestate, and entitled to succeed to his estate. The nephew of the deceased opposed his application. Under the Status of Children Act 1980 of St Vincent and the Grenadines, where a child born out of wedlock is asserting paternity in order to succeed to property, the �paternity must have been admitted by or established during the lifetime of the father, (whether by one or more of the types of evidence specified by section 6 or otherwise).’^[196] The court at first instance held that McKenzie did not satisfy the provision. Saunders JA, giving the decision of the Court of Appeal, explained that this ruling meant he could proceed with a declaration that Sampson was his father but even if he succeeded, he could not share in Sampson’s estate.^[197] The court viewed it as paradoxical that there could exist two standards given the fact that the professed aim of the Act is to remove the legal disabilities suffered by children whose parents were not married to each other.^[198] The judge went on to consider whether the Act was discriminatory within the terms of the St Vincent and the Grenadines Constitution. He felt forced to concede that the Constitution gave no relief against such discrimination, �no matter how reprehensible.’^[199]

In K and Minister of Foreign Affairs,^[200] the applicant was born out of wedlock in The Bahamas of a Bahamian father and non-Bahamian mother. When she was seven years old, her father attended The Bahamian Passport Office in Nassau and presented a completed application with supporting documents including the applicant’s birth certificate. Her application for a Bahamian passport was rejected on the basis of the �policy of The Bahamas Passport Office’ not to issue a passport to a child, born in The Bahamas out of wedlock to a Bahamian father but a non­Bahamian mother. The question before the Hall CJ was the interpretation of the word �parents’ in article 6 of The Bahamas Constitution 1973. That article provides that every person born in The Bahamas, after 9 July 1973 shall become a citizen of The Bahamas at the date of his birth if at that date either of his parents is a citizen of The Bahamas. There was no definition of �parent’ in the Constitution. Nonetheless, the Court held that the father of the child born out of wedlock was not a parent within the meaning of the enabling provision. He said, �I am unable to see how any other interpretation of the word “parent” is possible, nor am I able to accept the reliance on the provisions of the Births and Deaths Registration Act.’^[201] This is in a country where the overwhelming majority of children are born out of wedlock!

It is interesting to surmise how Georges JA would have dealt with these cases, whether his realist activism could have saved the day for these litigants. Perhaps, this is what he would have reminded us in his unusual eloquence in the Bahamian case of Smith v Commissioner of Police that he could �see no reason why the courts and common sense should in any way stand in possible antithesis the one to the other. To the extent that their paths diverge the law is likely to have been led astray.’^[202] Common sense is a discourse based on values, evaluation of outcomes — of policy. Unless this kind of common sense discourse, as distinct from the inaccessible and highfaluting legalism that the ordinary person cannot hope to understand is taken to Commonwealth Caribbean, I have argued elsewhere, �The structure of the legal system will be geared towards the maintenance of the status quo and not towards an ability to articulate the internal values of the society which it serves.’ I maintain that �the doctrine of “reception” and precedent and the retention of appeals to the Judicial Committee of the Privy Council in England, reinforced by the structure of legal education, and the control of law reform by the dominant cultural minority’ legitimises, reinforces and maintains �the sectional prejudice of the law.’^[203]

5.