Metalepsis, paragraphe and the scholia to Hermogenes - Leeds ...

MALCOLM HEATH, METALEPSIS, PARAGRAPHE AND THE SCHOLIA TO HERMOGENES
inevitable, and the magistrate might in any case have thought it desirable to allow
the plaintiffs to have their say, despite an unanswered paragraphe, simply to
ensure that they are (and are seen to have been) fairly treated. When he eventually
gives his verdict the magistrate does uphold the paragraphe; by then his
confidence that the defence was telling the truth about the chronology has been
strengthened, since the Nilus spectacularly exposes his own mendacity in the
course of the argument about the primary case.
Since the corpus of useable texts is very limited it is not surprising that I have
no example of non-documentary metalepsis. But it is easy to envisage, in the light
of the proceedings already mentioned, what such an example would be like. After
the initial formalities, the presentation of the prosecution’s case would be preempted
by the defence’s paragr£fomai, and the presentation of a law which (the
defence claims) licenses the act on which the charge is based. The opposing
advocate, if he had no way to dispute the interpretation of the law (which would
lead into documentary metalepsis), would have to argue that the act is relevantly
different from what the law licenses because of the circumstances.
With regard to documentary metalepsis even the limited corpus of useable
texts has given us analogies to the theorists’ complete and incomplete paragraphe,
the primary case heard in the same hearing or deferred to a separate hearing, and
paragraphe raising a conjectural question. We have also seen that the way a case
is conducted results from the interaction of decisions made by the advocates in the
presentation of the case and by the presiding magistrate in the exercise of the
considerable discretion allowed by the procedure of cognitio extra ordinem—in
which, of course, the advocates will wish to influence him. Once a paragraphe
has been stated it might be upheld, curtailing the hearing, or rejected, so that the
hearing continues to consider the primary case; but it might also be left in
suspension, and in this case too the primary case will be heard, though the
ultimate verdict may rest in whole or in part on an adjudication of the paragraphe.
So what at first sight seems like inconsistency in the theorists as to whether or not,
and at whose discretion, the primary case is argued as well as the paragraphe
seems in the light of this evidence to reflect faithfully the fluidity of procedure in
contemporary courts.
The convergence between practice and theoretical discussion is striking, and
is evidence that the rhetorical theorists were not engaged in a wholly isolated
academic activity. It should be emphasised that this convergence has nothing to do
with attempts to establish connections between declamatory laws and real law. 54
From the point of view of an advocate, laws are simply resources to exploit (or
sometimes obstacles to overcome) in making one’s case. In this respect they are
on a par with the facts of the case, or with the communal values that may allow
the facts to be characterised in various ways (an assault as legitimate retaliation or
excusable loss of self-control, for example). The advocate’s distinctive expertise is
not knowledge of the laws, but the ability to deal with whatever factors arise in a
given case, whether they are facts, witness statements, laws, or assumptions on the
part of the audience. Rhetorical theory contributes to the development of that
54 As, notably, in Bonner (1949). Contrast Crook (1993); (1995) 163-5; Winterbottom (1982) 64f.
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