Proceduralizing Regulation: Part I

Abstract

The solution frequently being advocated to a range of regulatory and indeed constitutional questions is to devise procedures for participation, for democratization. The aim of this article is to explore just what the shift to procedures and to participation might involve. The article will appear in this Journal in two parts. The first part distinguishes between two possible forms of proceduralization: "thin" proceduralization, based on a liberal model of democracy, and "thick" proceduralization, based on deliberative models of democracy. In exploring the latter, the article takes as its starting point the work of Habermas. Given the richness and complexity of his argument the development of the notion of thick proceduralization necessarily occurs in part through a critique of his work, for it is argued that although Habermas may provide an important starting point, his work cannot also be the end point of the debate. The second part of the article will discuss the modifications that may need to be made for «thick» proceduralization to be adopted as a regulatory strategy.