Formalism and the case law of the Data Protection Ombudsman

Abstract

The paper Formalism and the case law of the Data Protection Ombudsman tries to anchor the academic discourse at the border between constitutional law and legal theory, in that it seeks to place the case law of the Data Protection Ombudsman (DPO), a legal institution that ceased to exist ten years ago, between law-based positivism (formalism in the argument of the paper) and informal fundamentalism in the defense of fundamental rights. In the paper's argument, the DPO's jurisprudence is informal. However, the paper claims more than that. According to this paper, legal formalism itself raises empirical analytical issues in constitutional decision-making. Several of the findings of the study challenge legal formalism. The paper does not, however, challenge the normativity of legal formalism, but argues that these normative assertions cannot be verified by descriptive methods. At the same time, the study's rich case-law analysis could be a valuable resource for other subsequent research.