Introduction

The role of the courts in a liberal democracy. Sometimes described as one of the main battlegrounds of constitutional theory, debates on the subject traditionally centre around the twin questions of judicial lawmaking and constitutional review. Why should a judicial body be empowered to review acts of elected offi cials? And where ends legitimate exercise of the judicial function? What unites these two questions is that they seem to illustrate the uneasiness legal and political scholars display when discussing the political role of the judiciary . The unelected branch, least dangerous as it may seem, has no role to play when it comes to deciding on issues of public policy. It should, ideally, confine itself to applying existing norms on individual disputes between citizens or, if it must be, between citizens and public authorities. Now, this view has, of course, been subject to a lot of debate, not least from the specific angle of th e separation of powers.

In a recent book on this concept, German scholar Christoph Möllers takes the view that courts do have a legitimate role to play in developing and interpreting the law, provided that they ‘individualise’ their decisions, i.e. narrow the scope of their reasoning to the specific case before them. Moreover, the concept does not, as such, rule out the possibility of judicial constitutional review for a specific polity. However, he displays some uneasiness with individual concerns triggering decisions of a general scope in an exclusive procedure. Underlying this emphasis on the individual aspect of judicial decision-making, is a model of the separation of powers tied to the distinction between collective and individual selfdetermination, traditionally locating the judicial function in the realm of the latter. Courts, in other words, serve the interests of individual justice.

The past decades however, have witnessed the rise of a phenomenon that fundamentally challenges this perception of the judicial role. This phenomenon, usually coined public interest or public law litigation (PLL ), displays courts as instruments of social and institutional reforms. Their political role is not just a by-product of doing individual justice, it is indeed an attempt to engage in shapin g collective self-determination. That, in itself, may raise delicate questions from a separation of powers perspective.