The trend towards the establishment of ombuds institutions continues unabated. Most countries have public and/or private sector ombuds institutions, which function as mechanisms for dispute resolution alternative to the courts, providing low-threshold access for citizens to seek redress for complaints against public bodies or businesses. Thus, the institution exists in numerous contextual and conceptual adaptations. The public sector ombuds, which is often understood as a key pillar for the consolidation of democracy, can have several functions: it can resolve complaints, they can review the implementation of legislation and government programs, or play a key role in networks of accountability. In some countries ombuds are also involved in testing the constitutionality of legislation or have a human rights mandate. Private sector ombuds on the other hand can be understood as a key pillar for redressing the power imbalance between private industry and the consumer. Across both common law and civil law justice systems, private sector ombuds deal with disputes between consumers and businesses or organizations. Whereas private sector ombuds operate in a different sphere, in their function they have a normative parallel to that of public sector ombuds since they both work to provide a free of charge (or cheap) and accessible grievance mechanism.
Public ombuds institutions, as Stuhmke and Groves recently wrote, are of curious nature as they sit between state structures as well as between disciplines. Throughout the short history of ombuds scholarship, scholars have thus created the object “ombuds” from different angles. Legal scholars have observed the emergence and transformation of ombuds-institutions in different legal contexts and institutional landscapes. The spread of the idea and its implementation throughout various nations and regions, legal systems and sectors of public administration have opened the field for an important body of literature in comparative law and administrative justice. Adding to this strand of literature, socio-legal scholars started investigating ombuds users’ sociodemographic profiles, their expectations and acceptance of decisions. These studies often focus on (in)equal access to legal support, but also on how complainants’ legal experiences differs from that of the overall population. Finally, more recently, we also find literature on organisational dimensions of ombuds institutions, such as research on actual complaint-handling practices or concerning the variety of goals ombuds organisations are working for on an everyday basis.
The existing literature now provides us with a good understanding – still in varying depth depending on the focus – of legal frameworks, users and organizational design. But there are certain limitations and blind spots to our knowledge which we think it is time to tackle. As social scientists we believe that it is time to broaden our horizon in at least three areas:
First, we know little about the way changes in the constitution of modern societies affect ombuds institutions. How do current global events and developments, such as the increasing digital transformation but also the COVID-pandemic related policies affect the structure of complaints, the work of ombuds and the relation to their users? Similarly, we should ask how ombuds institutions in different socio-political and cultural contexts deal with the dynamics of the climate crisis as well as war and migration, especially if they have a human rights mandate. The question how such “external forces” influence the organisational structure of ombuds and the definition of their mission, as already raised in the The Modern Ombudsman, also needs to be investigated further.
This brings us to the second research gap, namely, that the large bulk of research has yet failed to develop a critical perspective on ombuds institutions. Although ombuds institutions exist throughout the world, most literature still focuses on the Global North and operates with traditional Western categories of democratic states. The spread and development of the institutions in post-colonial contexts and during transitions to democracy is often – implicitly or explicitly – described as a step towards “good” habits defined by former colonial powers. But ombuds scholarship has also not been overly receptive to other critical approaches, developed outside their narrow field, such as critical legal studies and especially gender studies. Instead of promoting western centrism, ombuds studies could benefit from more critical perspectives, including post-colonial and feminist research. In their recent blog post, Anita Stuhmke and Matthew Groves pointed to the “energetic discussion of the continued relevance of the ‘man’ in ombudsman”, which is starting to gain momentum in the scientific debate. The persistent gendered nature of the name of the institution reflects a broader lack of interest in the way ombuds institutions reproduce the gendered social structures of societies they form part of. Empirical research has shown that both ombudspersons and complainants are mainly male, however, this matter has not been investigated further, as many other dimensions of the potentially gendered nature of ombuds work and institutions.
This brings us to a third and final gap: empirical research on ombuds institutions. We believe that ombuds institutions should more often be subject to socio-legal inquiry rather than descriptive or theoretical commentary alone. To date we know much about the formal architecture of these institutions, but less on how these formalities impinge on real life: How are ombudspersons in fact appointed? How does ombuspersons’ professional and political background inform the way the office is conducted? How is (in)dependence from the executive powers and the legislature achieved ? What matters in the handling of complaints? What do people concretely complain about? Strengthening the empirical approach to ombuds institutions also goes hand in hand with consolidating the ties between the field of ombuds scholarship – mainly situated within public law – and the sociology of law as well as with political science. Ombuds institutions cannot merely be understood as codified legal entities but as institutions embedded in specific social contexts that are formed by societal forces surrounding them and which contribute to a certain extent to the shaping of modern societies. Empirical and comparative investigations will help us understand factors and social processes relevant to the coming into existence, the functioning and the evolution of ombuds within the societies they operate in.
Building on essential previous research on ombuds institutions and the identified gaps we aim to promote the continued collaboration and exchange within the scientific community of scholars working on ombuds. Two workshops and on-point anthologies – Research Handbook on the Ombudsman, edited by M. Hertogh and R. Kirkham, 2018 and The Ombudsman in the Modern State, edited by M. Groves and A. Stuhmcke, 2022 – have established the necessary grounds for taking the debate further and exploring new directions in ombuds research. A third workshop, and a third anthology, will bring together theoretical and empirical research, interdisciplinary and comparative studies along the analytical lines drawn above, in order to direct the contemporary debates within the field. It should create an opportunity for scholars and practitioners working on/in ombuds institutions of different kinds, with various disciplinary approaches and from diverse parts of the world, to meet and discuss these pressing issues.
Dr Axel Pohn-Weidinger is a Maître de conférences / Associate Professor at the Université de Strasbourg and Dr Julia Dahlvik is researcher and lecturer at the department of Public Management of the Vienna University of Applied Sciences (FH Campus Wien)
Administrative Law in the Common Law World 