MILITARY LAW — A STUDY IN COMPARATIVE LAW 363 judex, only if the jurisconsuUus had been authorized by the Em- peror to render such responsa, and if their responsa thus rendered were absolutely binding, the position of the jurisconsuUus at Roman law would be almost identical with that of the Judge- Advocate-General in mihtary law. Whatever these differences of detail, the actual difference be- tween Roman law and Anglo-American law on this point is rather apparent than real. While they differed sharply upon their the- ories as to the possessor of technical legal knowledge, they agreed writings generally, see Muirhead, Historical Introduction to the Private Law OF Rome, 2 ed., Pt. V, Chap. I, § 78, p. 363-65. Melville, Manuel of the PuiNa- PLES of Roman Law, 2 ed., Pt. I, Chap. I, § VIII, pp. 42, 43. Walton, Historical In- troduction TO Roman Law, 8, Chap. XXVI, pp. 293-95. Salkowski, Institutes and History of Roman Private Law (Whitfield's translation). Introduction, Pt. II, § 9, p. 58. SoHM, Institutes of Roman Law (Ledlie's translation), 3 ed., Pt. I, Chap. II, § 21, pp. 118, 119. Girard, Short History of Roman Law (translated by Lefroy and Cameron), Chap. Ill, §§ II (II), pp. 152, 153. Kuhlenbeck, Entwicklungsge- schichte des Romischen Rechts, Bk. Ill, Chap. II, § 4, p. 350. "By the third century there begins a decline of Roman jurisprudence, which suffers a rapid decay after Diocletian. Scientific productive activity died; the responses of the jurists ceased; the development of the law took place along the path of Imperial legislation only. Still the writings of the great past, which had been handed down, preserved their binding force. The lack of scientific capacity and the great bulk of the juristic Uterature caused an uncertainty in practice as to its application. What writings were in force? Those of the authorized jurists. But how was one to know by this time whether this or that jurist of his own time (centuries ago) had acquired the jus respondendi? This and other similar diflSculties were the cause of a statute of Theodosius II. and Valentinian III., of the year 426, by which the sphere of the valid juristic writings was delimited, and at the same time their validity was regulated ac- cording to external facts, in accordance with the notions of the time. Through this so-called law of citations, the validity of the most current writings, that is to say, those of Papinianus, Paulus, Gains, Ulpianus and Modestinus were confirmed as pre-eminent; but with the exception of the notes of Paul and Ulpian to Papinian, which Constantine had already prohibited. These notcB were to remain prohibited in the future as well. Since Gains had had no jus respondendi in his time, this was given to him by a sort of ex post facto confirmation, since his writings were neverthe- less used in the courts. In addition to these five jurists, statutory validity was to be given to all the works of every other jurist, to which a reference was made in the works of one of the five thus named. To go into details, the process was regulated as follows. If all these jurists were of the same opinion with reference to a question, this was to be binding Hke a statute. In case of a divergence of opinion, on the other hand, that view should prevail for which a majority of the jurists had declared them- selves. In case of an equal division of authority, that view was to prevail which Papi- nian {excellentis ingenii vir) had expressed. In case he had not expressed himself con- cerning this question, the judge was finally to decide according to his own views." CzYHLARZ, Lehrbuch der Institutionen des Romischen Rechtes, § II. See, also, Roscoe Pound, "Mechanical Jurisprudence," 8 Col. L. Rev. 605.
