Introduction

What is the relevance of the separation of powers now that so much of the power of national parliaments to enact, amend and repeal the law, of governments to execute and enforce the law, and even of the judiciary to interpret and apply the law, has passed to other institutions beyond this trias politica? Power is wielded through many means, but the focus here is on lawmaking and the special demands it makes on the democratic accountability of those who do it. Law that ranges from the less concretised (general and abstract rules) to the more concretised (detailed implementation and application) is made beyond national parliamentarygovernmental complexes in a vast administrative fourth branch that straddles the old legislative-executive divide; beyond the nation state in supranational and international institutions; and beyond state (public) institutions altogether, in the form of self-regulatory codes, standards and certifi cation schemes. It is just about possible to accommodate limited transfers of law-making power to the fourth branch and even to supranational and international institutions using principal-agent models: They depict national parliamentary-governmental complexes as ill-equipped to fulfil all our ambitions for the law, given the complexities and cross-border dimension of the problems it must now confront, and as seeking to recover those lost capacities by delegating (always carefullycircumscribed) lawmaking to national, supranational and international agents. But so-called reflexive and experimental modes of lawmaking represent a more profound shift that is not susceptible to principal-agent modelling. These new modes of lawmaking radically diffuse the lawmaking enterprise and are thus characterised by the interdependence of the many actors involved, making separation of powers a strange place to look for a constitutional theory of them. But, in fact, the ‘checks and balances’ of a new separation of powers – no longer about ensuring all law is made by some idealised legislature and its formal agents – can be seen as generating both horizontal and vertical accountabilities that, refined by the judicial branch, inculcate these new modes of lawmaking with legitimating democratic constitutional values.