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Johann Jacob Moser As Defender of Rights of German States As CHAPTER EIGHT JOHANN JACOB MOSER AS DEFENDER OF RIGHTS OF GERMAN STATES As mentioned in Chapter 1, Christian Wolff and Johann Jacob Moser were two well-known exceptions to the rule that writers of the seven- teenth and eighteenth centuries did not enjoy much political freedom. Both Wolff and Moser were men of courage to risk their career and life for the sake of what they believed. But what these two extraordi- nary writers believed in were very different. While Wolff believed in the possibility of legal science, Moser rejected it as vain academism and believed in usefulness of writing books for practitioners of public law. Because Moser emphasized the importance of practical text over theory, he is considered to be one of the founders of positivism in international law. Yet his positivism—if it may indeed be called so— was not scientific positivism as we know it today. Instead it was more like pragmatism. Moser was less in search of scientific truth than he was in search of practical information. In this chapter, we shall briefly discuss the political contexts within which his particular doctrinal atti- tude developed. 1. Johann Jacob Moser’s Life and Its Political Context Johann Jacob Moser was born in Stuttgart in 1701 as the first son of a fiscal official of the Württemberg duchy. At the time of his son’s birth, Moser’s father was auditor of the Swabian Circle (der Schwäbische Kreis) of the Holy Roman Empire. The Moser family had lived in Swabia for generations and had a noble patronym (‘Moser von Filseck’) which Moser rarely used. At the age of sixteen, having attended the Gymna- sium in Stuttgart and following his father’s death in 1717, Johann Jacob Moser went to the University of Tübingen to study law. When he was nineteen years old, Moser decided to seek a professorship; after three years at Tübingen, his stipend was running out. In the spring of 1720 he broke with academic traditions by presenting himself to a ducal cabinet minister and submitting a treatise on the Württemberg coat of arms. He was awarded a nomination as professor extraordinarius, i.e. a 150 chapter eight professor without a regular salary. As was true of Adam Glafey as pro- fessor extraordinarius in his early days at Leipzig, Moser had to earn his living through private tutoring. However, it seems young Moser was not particularly talented as a teacher, or perhaps he was simply too young to attract any students. Moser might have had a successful career at Tübingen if he had accepted the opportunity offered to him by Christoph Matthäus Pfaff, an influential young professor at Tübin- gen (who soon became the University’s chancellor). Pfaff had offered Moser his sister Julianne’s hand in marriage. However, Moser refused this, saying “I had no wish for a wife who could hold it over me that it was she who had made a man of me.”1 Less than a year later he was forced to give up his professorship at Tübingen. In 1721, Moser left for Vienna and made the acquaintance of Count Friedrich Karl von Schönborn, vice-chancellor of the Empire, who, as mentioned above (Chapter 6), was to become prince-bishop of Würzburg-Bamberg in 1729. In 1726, Württemberg’s ducal govern- ment offered him the post of active state councilor and Moser went back to Stuttgart, giving up career possibilities in the Imperial govern- ment in Vienna. He worked as one of some fifteen members of the government’s council (Regierungsrat) until the court was moved to Ludwigsburg in 1727. Moser refused to follow the duke to Ludwigs- burg and thus remained in Stuttgart with a sinecure at the Collegium Illustre at Tübingen. He struggled to get a real professorial post at some university, including that of the University of Tübingen where a professorship of public law had become available in 1729. However, Moser continued to be disappointed despite his high hopes. When, following these disappointing days, Duke Eberhard Ludwig died in the fall of 1733, the duchy was inherited by his son Karl Alexander, who called Moser back to court in July of 1734.2 In 1735, Moser received an offer of a professorship at the University of Frankfurt an der Oder from Justus Henning Böhmer, a famous law professor at Halle and Prussian privy councilor to the University of Frankfurt an der Oder. The Prussian court seems to have felt it nec- essary to have an outsider to facilitate administrative and academic 1 Quoted and translated by Mack Walker, Johann Jakob Moser and the Holy Roman Empire of the German Nation, University of North Carolina Press, Chapel Hill, 1981, p. 24. For most of biographical description of Moser, I rely on this excellent work of Walker. 2 Walker, Johann Jakob Moser, 1981, p. 75..
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