N. Creutzfeldt

The ‘Ombuds Watchers’: Collective Dissent and Legal Protest Among Users of Public Services Ombuds

This article examines the phenomenon of the ‘ombuds watchers’. These are groups of dissatisfied users of public service ombuds schemes who engage in legal protest against the current system of redress for citizen-state complaints. Through the lens of legal consciousness scholarship we propose a framework that conceptualizes the collectivized protest of the ombuds watchers. Based on an empirical dataset, our analysis shows that the ombuds watchers meet each of the defining characteristics of dissenting collectivism and demonstrates the existence of forms of legal consciousness which present ‘opportunities to build alternative imaginaries and institutions’. Our case study provides an insight into the potential for dissenting collectives to challenge the hegemonic structures of state law, while at the same time emphasising the continuing power of legal ideology in shaping popular understandings of justice. The article also suggests a pathway for future empirical research into user experiences of justice systems.

What do we expect from an ombudsman? Narratives of everyday engagement with the informal justice system in Germany and the UK

This paper looks at expectations people have of informal justice mechanisms through a rich empirical dataset of 2775 recent ombudsman users in Germany and the United Kingdom. In a cross-cultural comparison the ombudsman, as a model of justice is explored. Not much is known about people’s expectations towards the ombudsman model; this paper starts to fill the gap. Four roles became apparent as cross-cultural narratives in the dataset; people who interact with ombudsmen expect them to be interpreters, advocates, allies and instruments. The identified roles are largely common to both countries, but in some aspects they show national specificities. These national specificities are seen mainly in the use of language; in Germany it is more legalistic in comparison to the UK. I argue that this might be related to what has been described as the general legal culture of each country and the institutional set-up.

Introduction: exploring the comparative in socio-legal studies

Among the diverse approaches to comparison in socio-legal studies those that employ qualitative research, richness of detail, and attention to context are the focus of this special issue. The Introduction draws on comparative law and social science literature to argue that comparison amongst studies of laws in contexts can follow different trajectories: the comparison may start from an assumption of similarity—in form, purposes, or context—in order to identify significant differences; or it may identify significant similarity across social and cultural divides. What unites many of the projects of comparison undertaken by qualitative empirical researchers is that the points of relevant comparison are identified within the complexity of the empirical studies at hand; and they are allowed to emerge, or change, as the researcher comes to understand the facts and issues more deeply.

Ombudsmen and Informal Justice

This is a book about how ordinary people experience the informal justice system. Based on an original dataset of recent users of ombudsmen, an institution of the informal justice system, the rapidly developing literature on procedural justice and legal consciousness is taken to a new place.

Europe’s Justice Systems

This chapter provides an overview of Europe’s justice systems and introduces the consumer ADR directive and the regulation on ODR—these form the basis of the fundamental, EU-wide change to the informal dispute resolution landscape. It includes an outline of what the implementation of these new rules into national (UK and Germany) ADR infrastructure means for the justice systems. The implementation into national frameworks signifies different things in different jurisdictions and needs to be disentangled. I argue that, for the legitimacy of the new legislative framework for ADR/ODR to be accepted, it needs to be understood in a national context and through its relationship with the formal legal system.

Everyday Assumptions about Ombudsmen

In this chapter, I introduce a further dimension to the analysis through the qualitative data. I suggest that we need to consider legal socialization and legal consciousness to get a better understanding of why we act the way we do when engaging with an ombudsman procedure. In a cross-cultural comparison, the ombudsman, as a model of justice, is explored. I argue in this chapter that people’s relationship with the law plays a crucial part in how they negotiate their way through, and engage with, the informal system. To explore this proposition, the notion of legal socialization provides fertile ground when combined with the qualitative data. Here, narratives of legal consciousness are discussed. I explore how people’s legal socialization and legal consciousness frames their understanding of an ombudsman procedure. I conclude that the formal legal system is likely to serve as a benchmark to shape attitudes towards the informal system.

Models of Ombudsmen

In this chapter, I discuss the implementation of the consumer ADR directive in national legal spaces. This legislation is very recent and, most systems and their users still need to become aware of, and accustomed to, this developing regime. I argue that for ombudsmen to be accepted and trusted as part of a system of justice, they have to be understood in their national context. In so doing, I discuss the country case studies and highlight similarities and differences in the development of ADR bodies. I discuss national and cultural distinctions in the legal systems, as well as those between public and private ombudsmen. Every member state has its own traditions and legal systems that have formed their populations’ approaches to disputes, attitudes to institutions and expectations of those institutions. I argue that the relationships we form with authorities influence the relationships discussed in this chapter: specifically, those between the citizen and the state and those between consumers and a business. These relationships are established and develop through our legal culture.

Growing Informal Justice (from the Inside-Out)

In this chapter I argue that the development and proliferation of ADR in Europe for providing high-quality procedures and outcomes needs to be addressed from the inside-out. ADR, at its best, can contribute to access to justice and has the potential to be a model of dispute resolution that embraces users notions of a just and fair procedure. ADR models then have to be designed to reflect values and ethical standards that go hand in hand with users attitudes. Does ADR (need to) create its own norms of fairness, justice and language? Thinking about justice, fairness, trust and legitimacy, questions guiding our future inquiries could include: do our traditional values and roles within our justice system have to be reconsidered? Do we need new measures and tools to create appropriate protection for actors and users in these new and rapidly growing spaces? How can we best understand these areas of little regulation and large complexity that cannot fully be captured by traditional methods, models and language?

Conclusion: Paths for Theory and Research

In the conclusion, I briefly revisit my main argument that we need to grow and focus on ADR within the national cultural context and only then it might mature into a European space. I offer three areas that require more attention in the continued study of informal justice and ombudsmen in Europe. These are: the way in which ADR providers’ systems are designed; the need to look out for vulnerable users; and the challenge of the digital.

A European Informal Justice System

In Chapter 7, I question how we construct ideas of justice in ADR and ODR. The notion of an informal justice system is understood through the role the EU plays and the form of justice that ADR and ODR provide. Alongside this discussion, the concept of access to justice is revisited. I argue that there is no tangible system of informal justice in the EU. I explore how ADR as a model of justice can be meaningful and accepted throughout the EU if it is defined by its national implementation. I conclude that at present people are still negotiating the legitimacy of ADR/ODR and that the acceptance of ADR into everyday practice is far from visible.