Judicial Production of Racial Injustice in Taiwo v Olaigbe: Decolonising the Incomplete Story on Race and Contracting

Abstract

In Taiwo, one of the most recent landmark cases on racial justice, the Supreme Court rejected race discrimination claims of two domestic migrant workers, ruling that discrimination on the basis of ‘immigration status’ should not be equated to discrimination on the basis of ‘race’. This article presents an argument for decolonising judicial decision-making, using Taiwo as an example to reimagine a much more favourable outcome for victims of racial injustice. This argument is explored through three propositions for decolonial judgment: (a) challenging racial bias in judicial reasoning and legal doctrine; (b) challenging legal frameworks as sites of racial oppression and inequality; and (c) accounting for contextual diversity of experiences of racialisation, avoiding essentialist arguments and categories of racial discrimination. Drawing on these, the article retells the stories in Taiwo to challenge the dominant, traditional race equality paradigm and expose the varied and multi-layered ways in which people are racialised differently across historical and socio-cultural contexts and communities. It also opens the potential for an epistemic shift away from the liberal paradigm of ‘freedom of contract’ and towards the analysis of racial contracting that is co-constituted by multi-layered and context-situated structures of oppression and domination.