Whenever the law is not entirely clear on a subject, the judge is called upon to clarify the law. When the law is clear, the judge has to apply the law to facts straightaway. But when the law is not clear, it is an entirely different ball-game:
The judge faces a lot of constraints when faced with law that is not entirely clear: the judge is burdened and constricted by the facts before her. Another constraint is the submissions made by the advocates, in aiding the court in clarifying the law. Another important constraint is the temporal constraint that the judges faces considering the sheer volume of work that the judge is called upon to do in quick time. Another constraint is the precedents. The judge is bound by the doctrine of precedents to comply with the precedent. These constraints may have the effect of the judge in not dealing with a particular facet of law.
But how should the legal system address this problem? Precedential system is costly. It cannot be expected that a larger bench would immediately deal with that facet of law. To give an example, Bhatia International was decided in 2002. It was only a decade thereafter, in 2012, that BALCO overruled Bhatia. In that decade, Bhatia created havoc and resulted in an unclear law with lawyers making tons of money owing to the lack of clarity and parties, unfortunately, suffering. The SC in BALCO had to rely on the prospective overruling doctrine to ensure that no further confusion is created.
It is at this juncture that the academic machinery's role comes into the picture. The academician's dharma is to critically evaluate the judgement not only on the law that the judge has discussed but also on the points that that judge has not discussed. By "academician", it is not only the law university that is meant but also the law practitioner who dons the academician's role in critically evaluating the decision.
As compared to the judge, the academician is relatively in a better position. She can sit in the comforts of a University with time on her side and a library at her beck and call. Consequently, it is the sacred duty of an academician to engage in critically evaluating the law and the judgment.
In critiquing the law, the words of HM Seervai, quoted at the top of the Practical Academic blog, are pertinent: "If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes mus lead to the discovery of right reasons, or better reasons than I have been able to give, and the cause is served just as well."
The law practitioner's duty then begins. She is duty-bound to critically evaluate the criticism by the academician, take it and present it before the court in another case, or rarely, in the very case the court decided. It is then left to the court to examine whether the judgment was correctly decided.