The democratic legitimacy of the Judiciary for the protection of fundamental rights

Abstract

This article explores the democratic legitimacy of the Judiciary within the framework of the constitutional State, emphasizing its essential role as a counter-majoritarian institution entrusted with the protection of fundamental rights. The central hypothesis is that the Judiciary, even when not elected through popular vote, possesses an original democratic legitimacy derived from its constitutional mandate to safeguard rights and limit majority decisions. To substantiate this claim, the study develops a theoretical framework grounded in post-positivist legal theory (Alexy, Ferrajoli, Zagrebelsky, Häberle, Romboli), while also incorporating comparative constitutional perspectives from Europe and Latin America. Particular attention is given to the Mexican constitutional reform of 2024, which introduced popular elections for judicial offices, raising questions about the balance between electoral legitimacy and institutional independence. The methodology combines doctrinal analysis, historical contextualization of Mexican judicial reforms (1994, 2011 and 2024), and comparative references to highlight the risks of reducing legitimacy exclusively to electoral mechanisms. The contribution of this article lies in demonstrating that democratic legitimacy is not exhausted in majority rule, but is also rooted in institutional design that guarantees rights beyond electoral contingencies. By clarifying the interaction between democracy and fundamental rights, the study provides a critical perspective for evaluating judicial reforms in Mexico and enriches applied research, offering insights into how constitutional design can strengthen both democratic governance and the protection of fundamental rights.