Reflexive juridification: procedural criteria for democratic legal mobilisation

Abstract When does legal mobilisation democratise institutions rather than instrumentalise them? Existing frameworks cannot answer this question: deliberative democracy theory evaluates political engagement without addressing legal mobilisation; socio-legal scholarship documents litigation’s effects without providing normative criteria. This article develops reflexive juridification as a framework for evaluating democratic legitimacy across institutional domains. Democratic legitimacy, I argue, requires movements to fulfil three copulative requirements: communicative translation, functional differentiation and identity preservation. These requirements – grounded in Habermasian discourse theory and operationalised through comparative analysis of Chilean and United States cases – specify procedural standards for assessing how movements navigate political deliberation and legal interpretation simultaneously. Comparative analysis reveals that instrumental juridification emerges symmetrically across ideological orientations: progressive movements through the judicialisation of politics (Chile’s Constitutional Convention), conservative movements through the politicisation of law (Dobbs). The framework advances interdisciplinary legal studies by providing normative criteria independent of ideological content, evaluating process rather than substance.