Volume 9 (2003) / Issue 2
The article is an inquiry into the legal source-function of ombudsmen, i.e. ombudsmen's contribution to the development of public law, and their role as legal reference sources. This legal source-function is potentially one of the most important aspects of ombudsmanship. This is demonstrated through a comparative study of two well-established and sophisticated European ombudsman systems which are very different and which operate in very different legal contexts, those in Denmark and Sweden. The relevance of the issue analyzed here is based on two observations: first, although ombudsmen belong to the European constitutional tradition, there is not yet a common understanding of the ombudsmen's main functions, nor a common pattern of response to their work. Secondly, the issue is very topical due to recent European developments on rules of `good administration', which reached a high point when a right to good administration was included in the EU Charter on Fundamental Rights. The article briefly explores the historical roots of the ombudsmen considered in this article, and explains how internal and external factors have given rise to their legal source-function. Three review fields demonstrate the law-developing function of the ombudsmen: general principles of law, discretionary powers and constitutional principles. The article also analyses the express and actual responses to the ombudsmen's legal source-function by courts, the legal literature and the drafters of preparatory works.
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