Liberal-constitutional Backsliding of Democracy and the Threat of the Pandemic

Theoretical and Empirical Considerations

Abstract

In this article we argue that what is called today a ‘democratic backsliding’ or de-consolidation should be analysed, at least in some cases, as a liberal-constitutional backsliding for which the pandemic of Covid-19 adds a new impetus and creates the situation where violation of constitutionality of law might become a norm. In our theoretical considerations, we propose to examine this problem from two interconnected perspectives: the tension between the liberal and the democratic components of liberal democracy, often overlooked by the dominant democratic theory, and constitutionalism as the major safeguard of individual rights and liberties that limits democratic sovereignty, or the will of the people expressed by democratic representation. To better understand the nature of the current crisis of liberal-constitutional backsliding, we refer to Carl Schmitt’s concept of ‘the administrative state’ where the dominant legal act is an administrative decree which does not require constitutional legitimacy or even the guarantee that it expresses the will of the majority. Our empirical considerations focus on the case of the liberal-constitutional backsliding in Poland exacerbated by the pandemic, which provides a good illustration of how the tensions within the liberal-democratic model itself can be used to justify democratic sovereignty as the only source of political legitimacy.