Bavaria's Supreme Court - A Unique Feature in History and Today

• Author: Manfred Dauster
• Position: Saarland University
• Pages: 9-30

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

BAVARIA’S SUPREME COURT – A UNIQUE FEATURE IN

HISTORY AND TODAY / Manfred Dauster

Dr. Manfred Dauster

Presiding Judge at the Bavarian

Supreme Court/Munich and Presiding

Judge at the High Court of Appeal of

Munich, as well as a member of the

Institute for Economic Criminal Law,

European and International Criminal

Law at the University of Saarland,

Saarbrücken, Hilblestraße 12,

80636 München, Germany

Manfred.Dauster@oblg.bayern.de

ORCID: 0000-0001-7582-1127

Abstract:

Courts shape the rule of law. Their history is part of the

culture of a country. The way judicial institutions are treated

characterises a country's attitude towards the status they accord to

courts and judges. In its almost 400-year history, Bavaria's Supreme

Court has experienced all facets - from being held in high esteem to

being abolished twice. Its history is a lesson that points to the future

in the development of European legal culture.

Submitted :

19 June 2021

Accepted :

10 November 2021

Published :

30 June 2022

Key words: Bavaria's Supreme Court; Legal Culture; European Rule

of Law; Legal History

Suggested citation:

Dauster, M. (2022). Bavaria’s Supreme Court – A Unique Feature in

History and Today. Bratislava Law Review, 6(1), 9-30.

https://doi.org/10.46282/blr.2022.6.1.246

1. INTRODUCTION

If we look at the landscape of institutions in the countries of Europe, we see few,

especially in the courts, which are so important for the European rule of law and which

have a long tradition as evidence of the growth of a rule of law. Europe has experienced

too many upheavals in the centuries of its history, which have had their e ffects on the

judicial institutions in the European countries. The Supreme Court of Bavaria is an

exception - not only in Bavaria and in Germany. Its very eventful, even painful history can

be a lesson in how states deal with their judicial institutions. This handling is embedded

in the constitutional and constitutional-political framework of the demand for a cultural

state in the European countries, to which the legal culture belongs as one of its core

elements. However, this legal culture can hardly be grasped in all its dimensions without

institutional history.

2. COURT AND (LEGAL) CULTURE

Culture is not just about having opera houses and museums. Opera houses and

museums are a given when it comes to culture, even if some political discussions about

their funding suggest the opposite. Culture is a system of phenomena that includes the

individual, society and the state and is characterized by a multitude of interdependencies

between all these players. The absence of culture becomes a threat to the individual,

society and the state, in particular if individual and social brutalization leads to the

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M. DAUSTER

BRATISLAVA LAW REVIEW

Vol. 6 No 1 (2022)

abandonment of humanity, morals and law. This is still important to say in a country that

has experienced the most horrific times of political, social, but also individual lack of

culture. Hitler’s passion for the Wagner Festival in Bayreuth does not make the Nazi State

a ”cultural state” (Kulturstaat). Thus, attendin g a festival did not make Hitler a supporter

of the culture that had developed throughout German history. He never was, and neither

were his cronies. This applies to him as a private person as well as the top representative

of the state, and this statement has general validity for the entire Nazi regime. The lack

of culture hurts. However, describing which individual, societal and a nthropological

aspects culture includes (of whom? of the individual?, of a certain society?, of a

continent?) can and must be discussed in individual references. Not always and at all

points such a discussion will lead to a consensus, but that is inherent to discussing

culture.

It was the lack of culture under the Nazi regime that in 1946 prompt ed the

Bavarian constitutional legislation to establish the Free State of Bavaria as a “cultural

state” (Kulturstaat). The lack of culture was vividly in the minds of the members of

parliament at the time, some of whom had experienced it themselves or even suffered

from it; the consequences of Germany`s cultural collapse were omnipresent in the ruined

landscapes of Bavaria's cities, they w ere a painful permanent reminder. Explicitly

including culture in the constitution, defined it a legal concept, although this still awaits

detailed explanation in the case law of the Bavarian Constitutional Court. However, it can

be stated: where there is law, there is also culture. Injustice shapes and causes lack of

culture. Therefore, the commitment to the Bavarian cultural state was also a commitment

to the Bavarian legal culture as it had been developed and cultivated over centuries until

January 30th, 1933, the day of the National Socialist’s seizure of power. Legal culture also

includes the institutions that are indispensable to the rule of law, first and foremost

independent courts. In this respect, the cultural state certainly also reflects the history of

institutions, especially in Bavaria, which, with its Supreme Court in all its historical

manifestations, has shaped the Bavarian legal landscape for many centuries

1

of its more

than 1000 years of sovereignty. Bavaria's cultural state also includes political discourse

and the democratic customs that sustain it. In the course of the 20th and 21st centuries,

Bavaria's Supreme Court has not always been (morally) well treated with respect to this

discourse. This article sketches this by means of reconstructing the institutional history

of this court, but also by offering an outlook at the value of this unique institution in

Germany and in Europe of the regions.

3. FROM THE 17TH CENTURY

REVISORIUM

TO THE 19TH CENTURY MUNICH

OBERAPPELLATIONSGERICHT

Germany’s history is characterized by particularism in its public institutions.

While in other European countries, such as France and England, the centralized nation

state grew stronger at the turn of the Middle Ages to the modern era, the trend towards

particular principalities intensified in Germany. This trend became even stronger with the

religious division caused by the Reformation in 1517 and the formation of blocs between

the then Protestant principalities and the states that remained Roman Catholic and were

grouped around the Habsburgian Emperors, which remained Roman Catholic, with

Bavaria developing to become a stronghold of Catholicism. When in 1806 the Holy

Roman Empire ceased to exist, it was considered by some German law academics as a

1

The Kingdom of Prussia, for example, the predominant power in the 19th century’s Germany, always adhered

to its higher courts and never decided to have a single supreme court.